No. 03-14-00214-CR

No. 03-14-00215-CR

No. 03-14-00216-CR

No. 03-14-00217-CR

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN, TEXAS

 

JONATHAN MATTHEW PORTERIE,

 Appellant

v.

THE STATE OF TEXAS,

 Appellee

 

On appeal from the 22nd Judicial District Court 

of Hays County, Texas

In Cause Nos. CR-13-0076, CR-13-0077, CR-13-0078, & CR-13-0920

 

APPELLANT’S BRIEF

 

 

James Gerard McDermott, II

Thompson Salinas 

Rickers & McDermott, LLP

8140 N. Mopac

Westpark 4, Suite 250

Austin TX 78759

512.201.4099

512.298.1129 (facsimile)

james@centraltexaslawyers.com

Attorney for Appellant

Oral Argument Not Requested

ACCEPTED

03-14-00217-CR

3557828

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/21/2014 7:11:52 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/29/2014 3:42:52 PM JEFFREY D. KYLE Clerk
LIST OF PARTIES

APPELLANT

Jonathan Matthew Porterie

APPELLANT’S ATTORNEYS AT TRIAL

Gina M. Jones Thomas C. Vaughn

 State Bar No. 24036855 State Bar No. 24060771

 Law Office of Gina Jones Tommy Vaughn Law Firm

 200 N. Seguin Ave. 200 N. Seguin Ave.

 New Braunfels TX 78130 New Braunfels TX 78130

APPELLANT’S ATTORNEY ON APPEAL

James Gerard McDermott, II

 State Bar No. 24041438

 Thompson Salinas Rickers & McDermott, LLP

 8140 N. Mopac

 Westpark 4, Suite 250

 Austin TX 78759

APPELLEE

The State of Texas

 

APPELLEE’S ATTORNEYS AT TRIAL

Brian C. Erskine

 State Bar No. 24074182 

 Gerard J. Perches

 State Bar No. 24040196

 Assistant Hays County District Attorneys

 712 South Stagecoach Trail, Suite 2057

 San Marcos TX 78666 

APPELLEE’S ATTORNEYS ON APPEAL

 Christopher Patrick Johnson

 State Bar No. 24032597

 Assistant Hays County District Attorney

 712 South Stagecoach Trail, Suite 2057

 San Marcos TX 78666
TABLE OF CONTENTS

LIST OF PARTIES i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iii

STATEMENT OF THE CASE 1

ISSUES PRESENTED 2

STATEMENT OF FACTS 3

SUMMARY OF ARGUMENT 3

ARGUMENT 4

ISSUE I 4

ISSUE II 11

ISSUE III 14

ISSUE IV 17, 19 

ISSUE V 17, 21 

PRAYER 23

CERTIFICATE OF COMPLIANCE 24

CERTIFICATE OF SERVICE 24
TABLE OF AUTHORITIES

CASES

Boyle v. State, No. 69,743, 1991 Tex. Crim. App. 

LEXIS 102 (Tex. Crim. App. May 15, 1991) (opinion 

on rehearing) (unpublished) 8

Brown v. State, 576 S.W.2d 820 (Tex. Crim. App. 1978) 22

Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App. 

2012) 7

DeVaughn v. State, 749 S.W.2d 62 (Tex. Crim. App. 1988) 20

Doyle v. State, 661 S.W.2d 726 (Tex. Crim. App. 1983) 7

Espinoza v. State, 955 S.W.2d 108 (Tex. App.—Waco 1997, 

pet. ref’d) 20

Evans v. State, 677 S.W.2d 814 (Tex. App.—Fort Worth 1984, 

no pet.) 13

Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) 20

Hathorn v. State, 848 S.W.2d 101 (Tex. Crim. App. 1992) 13

Jackson v. Virginia, 443 U.S. 307 (1979) 10

Kirby v. State, No. 05-93-00214-CR, 1995 Tex. App. LEXIS 

3907 (Tex. App.—Dallas Mar. 15, 1995) (not designated for 

publication) 15

Leal v. State, 975 S.W.2d 636 (Tex. Crim. App. 1998) 7

Lee v. State, 442 S.W.3d 569 (Tex. App.—San Antonio 2014, 

no pet.) 13

Neil v. Biggers, 409 U.S. 188 (1972) 15

Pierson v. State, 398 S.W.3d 406 (Tex. App.—

Texarkana 2013, aff’d on other grounds) 7

Simmons v. United States, 390 U.S. 377 (1968) 15, 17

Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014) 21

United States v. Wade, 388 U.S. 218 (1967) 16
Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) 10

CODES AND RULES

TEX. CODE CRIM. PROC. art. 38.07 22

TEX. PEN. CODE § 1.07(a)(11) 20

TEX. PEN. CODE § 21.15 1, 8

TEX. PEN. CODE § 22.011 1, 8, 22

TEX. PEN. CODE § 22.021 8

TEX. PEN. CODE § 30.02 1, 19, 20

TEX. R. EVID. 412 6-9

SECONDARY AUTHORITIES

Brown & Rondon, TEXAS RULES OF EVIDENCE

HANDBOOK (2015 ed.) 8
vi
TO THE HONORABLE COURT OF APPEALS:

 COMES NOW Appellant, Jonathan Matthew Porterie, and submits this brief 

on appeal from four judgments of conviction in the 22nd Judicial District Court of 

Hays County, R. Bruce Boyer, presiding.1

STATEMENT OF THE CASE

 The State tried Appellant under four indictments, which were joined for trial: 

three charges of burglary of a habitation with intent to commit or attempted to 

commit or committed sexual assault ((1) trial court number CR-13-0076, appellate 

cause 03-14-00215-CR; (2) trial court number CR-13-0077, appellate cause 

03-14-00216-CR; & (3) trial court number CR-13-0078, appellate cause 

03-14-00217-CR); and one charge of burglary of a habitation with intent to commit 

improper photography (trial court number CR-13-0920, appellate cause 

03-14-00214-CR). CR76: 8, 24; CR77: 6, 22; CR78: 8, 25; CR920: 5, 14; see 2

TEX. PEN. CODE §§ 21.15; 22.011; 30.02(a)(1), (d). A jury heard evidence and 

found Appellant guilty on all charges of burglary with intent to commit or 

attempted to commit or committed sexual assault and guilty in CR-13-0920 of the 

1

There are four judgments in four different cause numbers. Because they were tried together on 1

the State’s motion, the briefs submitted in each appellate case are identical.

For ease of reference to the records, in the text of the brief the cases will be referred to by their 2

trial-court cause numbers. The Clerk’s records for each will be labeled by the unique portions of 

the trial-court cause numbers. For example, in the text the case involving improper photography 

(appellate cause 03-14-00214-CR) will be referred to as CR-13-0920 and its clerk record will be 

cited as CR920: xx.
lesser-included offense of improper photography. CR76: 98; CR77: 94; CR78: 100; 

CR920: 59; RR7: 107-08. This appeal followed. 3

ISSUES PRESENTED

ISSUE I

The Court erred in excluding testimony of Michaud and Dawson 

under Rule 412 of the Texas Rules of Evidence. 

ISSUE II

The evidence is insufficient to show that Appellant committed a 

burglary against Lasley because the State offered no evidence that 

Appellant entered her room without her effective consent. 

ISSUE III

The evidence is insufficient to show that Appellant committed a 

burglary against Bell because the State offered no evidence to 

support Appellant’s identity as the person involved in that case. 

ISSUE IV

The evidence is insufficient to show that Appellant committed a 

burglary against Tippens because the State offered no evidence 

that Appellant lacked Tippens’s effective consent to enter her 

room. 

ISSUE V

The evidence is insufficient to show that Appellant committed the 

lesser-included offense of sexual assault against Tippens because 

the State offered no evidence that, from Appellant’s perspective, 

he lacked Tippens’s consent to engage in sexual activity with her.

2

The jury determined punishment in these cases, but Appellant raises no punishment issue on 3

appeal. CR76: 108, 110; CR77: 103, 105; CR78: 109-11; CR920: 68, 70; RR9: 5-7.
STATEMENT OF FACTS

 Appellant was a student at Texas State in San Marcos, as were the alleged 

victims. However, the four convictions that resulted from this trial concern four 

sets of evidence that are generally discrete from each other. They were tried 

together on the State’s motions for joinder for trial. CR76: 24; CR77: 22; CR78: 

25; CR920: 14. For ease of analysis, the facts will be reviewed separately under the 

arguments related to each conviction.

SUMMARY OF ARGUMENT

In Cause CR-13-0920, the trial court erred in excluding certain testimony of 

Michaud and Dawson under Rule 412 of the Texas Rules of Evidence. Appellant’s 

beliefs and culpable mental state were directly at issue in the improper 

photography case, and knowledge of the sexual history shared between all four 

people involved in that case was vital for the defense.

In Cause CR-13-0076, the State offered no evidence that Appellant entered 

Lasley’s room without her effective consent. The State failed to prove a burglary in 

that case. 

 In Cause CR-13-0077, the evidence is insufficient because the State failed to 

offer sufficient evidence to prove Appellant’s identity as the perpetrator, and so a 

conviction cannot be sustained on this record. 

3
 Finally, in Cause CR-13-0078, the evidence is insufficient to show that 

Appellant committed a burglary against Tippens because the State offered no 

evidence that Appellant entered the apartment or Tippens’s room without her 

effective consent or that, from Appellant’s perspective, he lacked consent to engage 

in sexual contact with Tippens. 

 The convictions in all four causes should be reversed. In Cause CR-13-0920, 

the case should be reminded for a new trial on the offense of improper 

photography. For all three of the other convictions, this Court should render a 

judgment of acquittal.

ARGUMENT

ISSUE I

The Court erred in excluding testimony of Michaud and Dawson 

under Rule 412 of the Texas Rules of Evidence. 4

 In Cause CR-13-0920, the State charged Appellant with burglary of a 

habitation by committing or attempting to commit the offense of improper 

photography. CR920: 5. The alleged victim of the burglary was Erica Michaud. 

CR920: 5. The jury convicted Appellant of the lesser-included offense of improper 

photography. CR920: 59; RR7: 107-08. 

4

This testimony and some photographs are part of the appellate record but under seal. On this 4

Court’s order, counsel was able to review this evidence. Because counsel reviews that evidence, 

this brief is submitted as containing sensitive material.
Facts

 Bryonna Dawson, Erica Michaud, Dashawn Singletary, and Appellant were 

friends. RR4: 162. On August 15, 2012, Dawson and Michaud went to the Vault, a 

bar in San Marcos. RR4: 162. Appellant and Singletary were at the bar as well. 

RR4: 164-65. It was common for the four of them to be together. RR4: 190-91. At 

the end of the evening, they went back to Michaud’s house with Singletary. RR4: 

166, 197-98. Neither Michaud nor Dawson remembered inviting Appellant over. 

RR4: 171-73, 199-200. However, at 1:55 am Dawson texted Appellant on 

Michaud’s phone and invited him to join them at the house. RR6: 132; RR7: 68; 

DX1. Dawson went to sleep in Michaud’s bed while Michaud and Singletary 

talked nearby in the bedroom. RR4: 167. At some point, a picture was taken of the 

three of them in bed, asleep and naked. RR169; SX 2. Michaud testified that she 

did not consent to her picture being taken while sage was in bed. RR4: 203. 

Michaud did not invite Appellant over that night, but she believed that Dawson 

might have, while using Michaud’s phone. RR5: 17-18, 24-25. 

Rule 412 testimony

 The trial court held two hearings outside the presence of the jury under Rule 

412: one for some testimony of Dawson and one for some testimony of Michaud. 

The trial court first heard from Dawson. Dawson did not remember if she had sex 

with Appellant that night, but she had a sexual relationship with him before that 

evening. RR4: 177. In fact, on occasion all four of them—Dawson, Michaud, 

5
Singletary, and Appellant—had sex together in a group. RR4: 179-81. They had all 

slept in the same bed. RR4: 179. She did not think anyone took any photos or 

videos. RR4: 182. Some might have described the relationship between the four as 

an open relationship. RR4: 182-83. 

 Next, the trial court heard from Michaud. Michaud stated that she had stayed 

at Dawson’s apartment in the past with Appellant, Singletary, and Dawson. RR4: 

211. She had had sex with Dawson and Singletary together in the past. RR4: 211. 

She had consented in the past to some sexual activity with Appellant in the 

presence of Dawson. RR4: 214-15. 

Application of Rule 412 

 The relevant portions of Rule 412 are as follows:

In a prosecution for sexual assault or aggravated sexual assault, or 

attempt to commit sexual assault or aggravated sexual assault, 

evidence of specific instances of an alleged victim’s past sexual 

behavior is also not admissible, unless:

*****

(2) it is evidence:

****** 

(B) of past sexual behavior with the accused and is offered by the 

accused upon the issue of whether the alleged victim consented to the 

sexual behavior which is the basis of the offense charged;

(C) that relates to the motive or bias of the alleged victim; . . . and

(3) its probative value outweighs the danger of unfair prejudice. 

6
TEX. R. EVID. 412. First, by “its plain language, Rule 412 only applies to 

‘the alleged victim’s past sexual behavior.” Pierson v. State, 398 S.W.3d 406, 

414 n.6 (Tex. App.—Texarkana 2013, aff’d on other grounds) (quoting TEX. 

R. EVID. 412). In case CR-13-920, the State indicted Appellant for burglary 

of a habitation with intent to commit or committed the offense of improper 

photography. CR920: 5. Michaud was the alleged victim of the burglary, 

because it was her house. RR4: 166, 197-98. 

 As a general rule, the State is bound by its charging decision. The 

State is bound by the allegations in the charging instrument. Crenshaw v. 

State, 378 S.W.3d 460, 465 (Tex. Crim. App. 2012); Leal v. State, 975 S.W.

2d 636, 639 (Tex. Crim. App. 1998); Doyle v. State, 661 S.W.2d 726, 729 

(Tex. Crim. App. 1983). And Rule 412 narrows the right to crossexamination only with respect to an “alleged victim,” not any possible 

victim. TEX. R. EVID. 412.

 Dawson was not the alleged victim of the burglary, and so Rule 412 

had no bearing on her testimony. In addition, the jury convicted Appellant 

only for the lesser-included offense of improper photography. As State’s 

exhibit’s 1 and 2 show, Dawson was entirely covered in the photographs that 

were taken. Dawson was not a victim, nor was she alleged to be the victim, 

of this offense. Therefore, her testimony was not subject to Rule 412 and 

should have been admitted. 

7
 The trial court also improperly excluded Michaud’s testimony under 

Rule 412. Although she was the alleged victim, Rule 412 only applies to 

cases involving “sexual assault or aggravated sexual assault, or attempt to 

commit sexual assault or aggravated sexual assault.” TEX. R. EVID. 412. 

There is some authority for extending the language of the rule “whenever 

any part of the charged conduct involves an alleged sexual assault.” Brown 

& Rondon, TEXAS RULES OF EVIDENCE HANDBOOK, 348 (2015 ed.) 

(quoting advisory committee’s note to FED. R. EVID. 412). For example, 

Rule 412 would apply in a capital-murder prosecution when the underlying 

offense that enhances the murder to a capital murder was aggravated sexual 

assault or kidnapping with intent to commit a sexual assault. See Boyle v. 

State, No. 69,743, 1991 Tex. Crim. App. LEXIS 102, at *21-34 (Tex. Crim. 

App. May 15, 1991) (opinion on rehearing) (unpublished). 

 No part of the charge of improper photography “involves an alleged 

sexual assault” or an attempt to commit a sexual assault. See TEX. R. EVID. 

412. Sexual assault or attempted sexual assault involves some sort of contact 

or penetration. See TEX. PEN. CODE §§ 22.011, 22.021. Improper 

photography only regulates photography or other means of the transmission 

of images. See TEX. PEN. CODE § 21.15. Without regard to whether Michaud 

or Dawson, or both, were victims in this case, Rule 412 simply does not 

8
apply. The trial court erred by applying Rule 412 to exclude those portions 

of the testimonies of Dawson and Michaud. 

 In any event, whether Appellant had consent to enter the house and 

whether he had consent to take the photographs were central issues to the 

defense. Defense counsel narrowly tailored the Rule 412 hearing evidence. 

Consent was the central issue, and the history of consent was the only topic 

of the Rule 412 hearings. See RR4: 176-89; 211-19. A rational application of 

the balancing test results in the conclusion that the narrowly tailored 

evidence was probative for the defensive theory and outweighed the 

potential prejudice by its admission. Even as the trial court noted, without 

the evidence, the jury was left misinformed about the actual nature of the 

relationships at issue. RR4: 101-02. By excluding the evidence, the jury was 

given the impression that the four people involved in the case were friends 

who drank together, rather than four people in an ongoing sexual 

relationship. 

Harm 

 The exclusion of this testimony harmed Appellant. The nature of the 

friendship and the ongoing relationships between Appellant, Singletary, 

Michaud, and Dawson were central to Appellant’s defense. Yet, as a result of 

the Rule 412 rulings, and as noted by the trial court itself, “I don’t know that 

you went—anybody went into a lot of detail or degree as to what 

9
‘relationship’ means.” RR4: 101-02. Even though Michaud denied giving 

consent to ever being photographed, as a result of the exclusion, the jury was 

denied the ability to weigh that claim against her general credibility in light 

of the relationships and history. RR4: 216. Certainly, the jury believed that 

Appellant had consent to enter the house because the jury convicted him of 

improper photography but acquitted him of the burglary. RR5: 17-18, 24-25.

The jury only heard that these four people were friends and that they drank 

together. The ruling misled the jury and so bolstered the claim of nonconsent with actual, court-blessed misinformation. 

 The trial court’s Rule 412 rulings were in error and substantially 

harmed Appellant. The Court should reverse the judgment of conviction in 

CR-13-0920 and remand the case for a new trial on the lesser-included 

offense of improper photography.

INTRODUCTION TO ISSUES II THROUGH V

Each of the remaining issues concern the convictions for burglary and each 

is a claim of insufficiency of the evidence. Legal sufficiency review is required by 

due process, and the standard of review is well-established: appellate courts review 

the sufficiency of the evidence in a criminal case by viewing all the evidence in the 

light most favorable to the verdict to determine whether any rational trier of fact 

could have found the essential elements of the offense beyond a reasonable doubt. 

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); see Jackson v. Virginia, 

10
443 U.S. 307, 318 (1979). It is important to note that each conviction is based on a 

discrete set of facts, with little or no overlap between them, and the sufficiency 

issues are therefore different in each issue. 

 The events in these cases took place mostly at the University Club 

Apartments in San Marcos. RR4: 119. Each apartment in the complex consisted of 

a common area with four bedrooms. RR4: 125. One bedroom was downstairs and 

the rest were upstairs. RR4: 125. Each bedroom had its own key, and each resident 

individually signed a lease for the bedroom and joint responsibility for common 

areas. RR4: 125-26. Appellant was a resident of the complex, but he was evicted 

on September 7, 2012. RR4: 132-33. 

ISSUE II

The evidence is insufficient to show that Appellant committed a 

burglary against Lasley because the State offered no evidence that 

Appellant intentionally or knowingly entered her room without 

her effective consent. 

 This issue concerns the conviction in trial court cause CR-13-0076. 

 Alexandria Lasley was a student at Texas State in 2012 and lived at the 

University Club apartments. RR5: 29-30. Appellant and Singletary lived in an 

apartment across the street. RR5: 50. Lasley lived in an upstairs bedroom. RR5: 30. 

She had dated Singletary in the past and knew Appellant. RR4: 30, 45. Jasmine 

Haynes lived in the downstairs bedroom and had been friends with Appellant. 

RR5: 30-31, 50. Haynes regularly invited Singletary and Appellant into the 

11
apartment. RR5: 57-58. According to Haynes, in Appellant’s apartment his 

bedroom is in the same location in the layout as Lasley’s is in hers. RR6: 90. 

Haynes believed Appellant did not like Lasley, and he had never made any 

attempts to make any sexual advances to her. RR6: 90. Appellant had stayed in the 

apartment on several occasions. RR6: 92. Doors were generally unlocked, and 

Lasley’s door was usually left open when she was sleeping. RR6: 93. 

 On September 1, 2012, Haynes and Appellant were drinking at bars in San 

Marcos until around 2:30 a.m., when they went back to her apartment. RR6: 88. 

Haynes invited him to the apartment, and Appellant was going to sleep there. RR6: 

88, 91. Haynes went to bed, and Appellant went to the bathroom. RR6: 88. 

Lasley had been working at a bar in Austin that night. RR5: 32. When she 

got home, she went to bed and thought she locked her bedroom door. RR4: 32-33. 

Sometime after 4:40 am, Lasley woke up because she felt a hand on her leg. RR5: 

35. She started screaming. RR5: 35. She opened her eyes and saw that Appellant 

was the person touching her. RR5: 36. A roommate and the roommate’s boyfriend 

ran into the room, Appellant asked that Singletary not be told about the incident, 

and he ran. RR5: 36-37. Lasley called Singletary and then went downstairs. RR5: 

37. Appellant was still there. RR5: 37. 

Around that time, Haynes woke up because Lasley was upset and standing in 

her doorway with Appellant, who was naked. RR6: 89-90. Appellant seemed 

12
confused and drunk. RR6: 89-90. Lasley wanted Appellant to leave, and he did. 

RR5: 37; RR6: 91. 

 The determination of effective consent to enter a building is fact-specific. 

See Lee v. State, 442 S.W.3d 569, 580 (Tex. App.—San Antonio 2014, no pet.); 

Evans v. State, 677 S.W.2d 814, 818 (Tex. App.—Fort Worth 1984, no pet.). A 

determination of the issue of consent to entry in burglary prosecutions often rests 

on circumstantial evidence. Hathorn v. State, 848 S.W.2d 101, 107 (Tex. Crim. 

App. 1992). Whether a door is open or unlocked is not necessarily determinative. 

See Lee, 442 S.W.3d at 580. 

 In this case, the residents of the apartment, including Haynes and Lasley, 

extended a general welcome to Appellant to be in the apartment. RR6: 91-93. 

Lasley’s door was generally open, and Lasley never communicated any restrictions 

to Appellant. RR6: 91-93. Lasley thought she locked her door that night. RR4: 

32-33. However, Haynes testified that was not her general habit, and there was no 

other sign or indication would support the idea that the door had been unlocked or 

forcibly opened by Appellant. RR6: 91-93. Appellant may have been confused as 

to where he was, but nothing in the process of entering the room would have been 

any different than any other occasion on which he might have entered the room 

with permission. See generally RR6: 91-93. Thus, this Court should reverse the 

judgment of conviction in Cause CR-13-0076. 

13
ISSUE III

The evidence is insufficient to show that Appellant committed a 

burglary against Bell because the State offered no evidence to 

support Appellant’s identity as the person involved in that case.

This issue concerns the conviction in the trial court in cause CR-13-0077. 

Facts

Jacie Bell also lived at University Club in the fall of 2012. RR5: 83. She did 

not know Appellant or his name. RR5: 88. 

 On September 7, she was in bed when woke up and saw a man standing at 

the foot of her bed. RR5: 85. She jumped up and he crouched down. RR5: 86. She 

asked him to leave several times, he didn’t move, so she got her phone to call the 

police. RR5: 86. The man ran downstairs. RR5: 86. Bell looked out her window 

but did not see anyone. RR5: 89-90. She later discovered that her front door was 

locked but the back door was unlocked. RR5: 91-92. 

When police officers had responded to her apartment that night, they showed 

her the picture of only one person to help her identify who the man in her bedroom 

was. RR5: 71-73; 97. Bell had told officers when they arrived that the man was “a 

tall, thin black male with very little hair” and that “he had light-colored plaid shorts 

on.” RR5: 72, 78. Outside in the apartment complex, the police found Appellant, 

who lived there, and he was wearing “Carolina blue basketball shorts.” RR5: 79; 

SX 15. Appellant was not the only black male who lived at the complex, but 

officers did not detain, talk to, take pictures of, or in any other way investigate any 

14
other black males. RR5: 79. The police took his picture only because he was 

outside at the apartment complex, that he lived in, when they arrived. RR5: 71-73; 

97. They showed Bell no other pictures than that of Appellant. RR5: 80. In trial a 

year and a half later, Bell identified Appellant as the person in her bedroom that 

night based on her memory that she “looked at him straight in the face for, like I 

said, over a minute. I knew it was a black male who was not wearing a shirt and a 

medium to small frame. And that’s exactly what I told—told the police whenever I 

called.” RR5: 92-93. 

Identification 

 Improperly conducting a photographic lineup may result in an erroneous 

identification. Simmons v. United States, 390 U.S. 377, 383 (1968). For instance, if 

the police show a witness only one picture of a single individual, or display a series 

of pictures of several people in which the photo of one person recurs or is 

emphasized, a danger of misidentification arises. Id. “Unnecessarily suggestive 

confrontations create an unwarranted and extremely high risk of irreparable 

misidentification.” Kirby v. State, No. 05-93-00214-CR, 1995 Tex. App. LEXIS 

3907, at *5-6 (Tex. App.—Dallas Mar. 15, 1995) (not designated for publication) 

(citing Neil v. Biggers, 409 U.S. 188, 198 (1972)). “Regardless of how the initial 

misidentification comes about, the witness thereafter is apt to retain in memory the 

image of the photograph rather than of the person actually seen, reducing the 

trustworthiness of subsequent lineup or courtroom identification.” Simmons, 390 

15
U.S. at 384. “It is a matter of common experience that, once a witness has picked 

out the accused at the line-up, he is not likely to go back on his word later on, so 

that in practice the issue of identity may (in the absence of other relevant evidence) 

for all practical purposes be determined there and then, before the trial.” United 

States v. Wade, 388 U.S. 218, 229 (1967). 

 In this case, officers showed Bell the picture of only one person, Appellant, 

and pulled her outside to look only at him and nobody else. RR5: 71-73; 97. 

However, Bell had told officers when they arrived that the man in her room “had 

light-colored plaid shorts on.” RR5: 72, 78. When Appellant was found moments 

later, he was wearing “Carolina blue basketball shorts.” RR5: 79; SX 15. Appellant 

was not the only black male who lived at the complex. RR5: 79. Officers did not 

conduct any further investigation or search for anyone who actually matched the 

description given by Bell. RR5: 79. The police took his picture only because he 

was outside at the apartment complex, that he lived in, when they arrived. RR5: 

71-73; 97. 

 Even if the Court were to consider the evidence in the other cases tried with 

this one, the identification does not pass Constitutional muster. In each of the other 

cases, Appellant knew everyone involved. He had been invited into the residences, 

either on the night in question or as a general habit. In this case, the victim was a 

stranger and did not know Appellant. The person in her room was unknown to her. 

Entry had been through a backdoor that was left unlocked by mistake. There is no 

16
common scheme or detail that links Appellant actions in the other offenses to the 

offense that Bell suffered. In fact, consideration of the other offenses compounds 

the error made by law enforcement in this case by ignoring the facts of this case to 

link Appellant from the others. Thus, the jury was lead to the same unnecessarily 

suggestive identification that Bell was. 

 The likelihood of irreparable misidentification violates a defendant’s due 

process rights. Simmons, 390 U.S. at 384. Thus, the Constitution requires appellate 

courts to reverse convictions that are directly or indirectly based on a pretrial 

identification “so impermissibly suggestive it created a very substantial likelihood 

of irreparable misidentification.” Id. The Court should therefore reverse the 

judgment of conviction in Cause CR-13-0077.

ISSUE IV

The evidence is insufficient to show that Appellant committed a 

burglary against Tippens because the State offered no evidence 

that Appellant lacked Tippens’s effective consent to enter her 

room. 

ISSUE V

The evidence is insufficient to show that Appellant committed the 

lesser-included offense of sexual assault against Tippens because 

the State offered no evidence that, from Appellant’s perspective, 

he lacked Tippens’s consent to engage in sexual activity with her.

These issues concern the conviction in trial court cause CR-13-0078. 

17
Facts 

 In November 2012, LeTesha McDuffie was living in an apartment at 

University Club. RR5: 113-14. She had three roommates, including Christian 

Tippens and Dahlia Zuniga. RR5: 114, 138, 189. McDuffie and Zuniga knew 

Appellant through Haynes. RR5: 115, 141. Appellant often came to the apartment 

to visit Tippens. RR5: 116. He was living with Singletary at the time but had been 

evicted from his lease. RR5: 116-17, 133. McDuffie, Tippens, and Zuniga did not 

normally lock the front door but rather had an open-door policy with friends, 

including Appellant. RR5: 128, 134, 142, 153-54. 

 On November 4, McDuffie, Tippens, Haynes, and another friend went to 

some bars in Austin. RR5: 117-21, 190-91. When they got home later that night, 

they saw Appellant driving into the parking area in front of the apartment. RR5: 

122. They greeted Appellant then went into their own apartments. RR5: 125. 

According to McDuffie, Appellant walked toward Singletary’s apartment. RR5: 

125. According to Haynes, Appellant walked with McDuffie and Tippens into their 

apartment. RR6: 100. Although she seemed intoxicated, Tippens walked in the 

parking lot by herself, into the apartment by herself, up the stairs by herself, and 

into her bedroom by herself. RR5: 125-26. McDuffie changed clothes and then 

drove to Cabana Beach. RR5: 132. 

 Zuniga had stayed home with a friend and the friend’s daughter. RR5: 148. 

She heard the others come home, and she locked her bedroom door so nobody 

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would disturb the child. RR5: 148-49, 158. In the morning, she went into the 

common area and found Tippens crying. RR5: 150. Police were also there, and the 

front door was open. RR5: 150. After the police left, she took Tippens to the 

hospital. RR5: 152-53. 

 Tippens did not remember the ride from Austin back to San Marcos. RR5: 

193. Her first memory after leaving Austin was being in her bathroom and 

throwing up because of her intoxication. RR5: 193-94. She saw Appellant in the 

doorway to her bathroom. RR5: 194. She asked him why he was there, and he 

responded that he was “protecting [her] from dreadheads.” RR5: 195. She next 

remembers being on her bed with Appellant nearby, who was touching her. RR5: 

196. She passed out again and then awoke with his penis inside her. RR5: 196. She 

told him it hurt. RR5: 197. When the sexual encounter ended, she took a shower. 

RR5: 198. Afterwards, Appellant was gone. RR5: 198. She did not remember if she 

told Appellant if she consented or not to the sexual encounter. RR5: 219-20. 

 In the morning another friend came into her room to wake her. RR5: 199. 

Tippens was naked. RR5: 199. She called the police then went to the hospital for a 

SANE exam. RR5: 200; RR6: 34-74. After the event, Tippens no longer had any 

relationship with her roommates. RR5: 203-04. 

Issue IV: Burglary

 To convict Appellant of burglary, the State had the burden to prove that he 

entered Tippens’s room without her effective consent. TEX. PEN. CODE § 30.02; see 

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CR78: 8, 93. The gravamen of the offense is the entry itself, and therefore if the 

entry was with the effective consent of Tippens, no burglary occurred. See Ex parte 

Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); DeVaughn v. State, 749 

S.W.2d 62, 65 (Tex. Crim. App. 1988). “Consent” means “assent in fact, whether 

express or apparent. TEX. PEN. CODE § 1.07(a)(11). 

 Finally, although the State charged Appellant broadly under section 30.02 of 

the Penal Code, it abandoned the allegation that Appellant entered Tippins’s room 

with the intent to sexually assault her. See CR78: 93. The Court only charges the 

jury to determine in Appellant entered her room and “attempted to commit or 

committed” sexual assault, thus limiting the jury’s consideration to section 

30.02(a)(3) of the Penal Code. As a result, Appellant’s intent at the time of entry is 

the defining evidentiary point and is independent of the question of whether he 

committed or attempted to commit a sexual assault while inside. See Espinoza v. 

State, 955 S.W.2d 108, 111 (Tex. App.—Waco 1997, pet. ref’d). In other words, it 

does not matter what Appellant intended to do when he entered, only whether his 

entry into the apartment was with consent. See id. 

 In this case, the record evidence is straightforward. McDuffie, Tippens, and 

Zuniga did not normally lock the front door. RR5: 128, 134, 142, 153-54. They had 

an open-door policy with friends, including Appellant. RR5: 128, 134, 142, 

153-54. Appellant often came to the apartment to visit Tippens. RR5: 116. There 

had been other people in the parking lot that night when the group returned from 

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Austin. RR6: 100. When Tippens saw Appellant in the doorway to her bathroom. 

she asked him why he was there. RR5: 194-95. He responded that he was 

“protecting [her] from dreadheads.” RR5: 194-95. Tippens did not indicate that 

Appellant should not have been there or that she was surprised or upset that he was 

there. See RR5: 194-95. 

 This record lacks any evidence to show that Appellant lacked consent to be 

in the apartment or to be in Tippens’s room at the time of his entry. Rather, it shows 

that he did have consent. The Court should reverse the conviction in this case and 

render a judgment of acquittal or reform the judgment, dependent on the Court’s 

resolution of Issue V, below.

Issue V: Sexual Assault 

 The evidence is insufficient to support a conviction for burglary because 

Appellant had effective consent for his entry, as argued above. Therefore, the Court 

must next turn to the proper remedy. In deciding whether to reform the judgment to 

reflect a conviction for a lesser-included offense, the Court “must answer two 

questions: 1) in the course of convicting the appellant of the greater offense, must 

the jury have necessarily found every element necessary to convict the appellant 

for the lesser-included offense; and 2) conducting an evidentiary sufficiency 

analysis as though the appellant had been convicted of the lesser-included offense 

at trial, is there sufficient evidence to support a conviction for that offense?” 

Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). Appellant 

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concedes that the answer to the first question is affirmative, because the lesserincluded offense of sexual assault was included in the jury charge. See CR78: 

93-94. Therefore, the only question is whether the evidence is sufficient to support 

a sexual-assault conviction. The evidence is insufficient to support a finding that 

the sexual encounter was nonconsensual. 

 Generally, a conviction for sexual assault could be “supportable” on the 

uncorroborated testimony of the victim. See TEX. CODE CRIM. PROC. art. 38.07(a). 

However, in this case the issue is whether the sexual encounter was consensual 

from Appellant’s perspective, and the issue of consent must be determined from the 

totality of the circumstances in each particular case. See Brown v. State, 576 S.W.

2d 820, 823 (Tex. Crim. App. 1978); R5: 195. In this case, consent could be 

analyzed from three different positions. First, from the general definition, consent 

is “assent in fact, whether express or apparent. TEX. PEN. CODE § 1.07(a)(11). 

Next, if Appellant did not receive consent and Appellant knew “the other person is 

unconscious or physically unable to resist” or if he knew that “the other person is 

unaware” of the sexual encounter. TEX. PEN. CODE §§ 22.011(b)(3), (5). 

 When the group returned from Austin and saw Appellant, Tippens walked in 

the parking lot by herself, into the apartment by herself, up the stairs by herself, 

and into her bedroom by herself. RR5: 125-26. Appellant had not been with then 

that night and so did not know anything about how much she had to drink. RR5: 

117, 122. He could only have judged the situation by what he saw. Tippens herself 

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did not remember if she told Appellant if she consented or not to the sexual 

encounter. RR5: 219-20. There is no evidence in this record that Tippens did not 

consent to the sexual encounter, because she did not remember if she had. RR5: 

219-20. There is no evidence in this record that Appellant knew that Tippens was 

unconscious, unaware, or unable to resist. She had spoken to him in her bathroom, 

she had been walking and talking in the parking lot, and she had been able to walk 

upstairs to her bedroom. RR5: 125-26. The fact that she was upset the morning 

after it happened has no bearing on what Appellant knew when it happened. 

 The evidence is insufficient to support a conviction for for the lesserincluded offense sexual assault in Cause CR-13-0078. Therefore, neither is the 

evidence sufficient to support a burglary conviction. The Court should reverse the 

conviction and render a judgment of acquittal.

PRAYER

 WHEREFORE, PREMISES CONSIDERED, Appellant prays that the Court 

reverse the judgments of conviction of the district court. In Cause CR-13-0920 

(appellate cause 03-14-00214-CR), the case should be reminded for a new trial on 

the offense of improper photography. For all three of the other convictions, this 

Court should render judgments of acquittal. 

Appellant prays for any such further relief to which he may be entitled. 

Respectfully submitted,

/s/ James Gerard McDermott, II

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James Gerard McDermott, II 

Thompson Salinas Rickers & McDermott, LLP

8140 N. Mopac

Westpark 4, Suite 250

Austin TX 78759

512.201.4099

512.298.1129 (facsimile)

james@centraltexaslawyers.com

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

 I hereby certify that this brief complies with Texas Rule of Appellate 

Procedure 9.4. The computer-generated word count for this document is 5220 

words, including headers and footnotes.

 

 /s/ James Gerard McDermott, II 

 James Gerard McDermott

CERTIFICATE OF SERVICE

 I hereby certify that a true copy of the foregoing document was served, by 

agreement, by email and by electronic service on December 21, 2014 to:

 

 Christopher Patrick Johnson

 State Bar No. 24032597

 Assistant Hays County District Attorney

 712 South Stagecoach Trail, Suite 2057

 San Marcos TX 78666

 /s/ James Gerard McDermott, II 

 James Gerard McDermott 

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