Elliott, Tevin Sherard
PD-0805-15
| Tex. App. | Jul 1, 2015Background
- Defendant Tevin Sherard Elliott, a Baylor football player, was convicted by a jury of two counts of sexual assault for events at an apartment-complex party on April 14–15, 2012; complainant used the pseudonym Jane Doe (Jasmin Hernandez).
- Hernandez testified she drank alcohol ("maybe 2 cups" of punch and a shot), said she did not think she was intoxicated, and described two separate nonconsensual sexual encounters; medical exam and DNA testing produced limited corroborative evidence (mixture on anal swab that could not exclude Elliott).
- Elliott testified the encounters were consensual and that Hernandez initiated and participated voluntarily; his phone recorded about a minute of audio/video early in the encounter.
- At trial the State presented rebuttal witnesses who testified to other nonconsensual encounters with Elliott; those matters were admitted without contemporaneous objection on 404(b) grounds.
- Post‑trial, Elliott moved for a new trial alleging (inter alia) ineffective assistance of counsel (failure to exploit a 30‑minute gap in surveillance video; failure to use Hernandez’s prior written statement; ill‑advised decision to have Elliott testify) and that the State knowingly presented perjured testimony about Hernandez’s sobriety; the trial court denied the motion and the Tenth Court of Appeals affirmed.
Issues
| Issue | Elliott's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency/form of indictment | Indictment failed to allege particular manner/means by which consent was vitiated | Indictment alleged elements of sexual assault; manner/means not required; defendant waived by failing to object before trial | Waived on appeal; issue overruled (affirmed) |
| Challenge to venire member | Prospective juror should have been excused for inability to follow law | No challenge preserved in record; defendant did not assert challenge for cause | Not preserved; issue overruled (affirmed) |
| Knowing use of perjured testimony about sobriety | Prosecutor knew Hernandez was "drunk" when she wrote her statement, but allowed testimony implying she was not intoxicated — due process violated | Inconsistencies do not amount to use of false testimony that created a false impression of sobriety; Hernandez testified she drank but did not think she was intoxicated | No due process violation; court held State did not knowingly present perjured testimony (issue overruled) |
| Ineffective assistance of counsel | Trial counsel was deficient for failing to exploit video gap, failing to cross‑examine using prior statement, and for putting Elliott on the stand given extraneous‑act testimony | Counsel reviewed video and affidavits, believed missing portion was not helpful; decision to put defendant on stand was strategic and informed; no showing of prejudice | Trial court did not abuse discretion in denying motion for new trial; ineffective assistance claim denied (issue overruled) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S.) (standard for ineffective assistance of counsel)
- Nava v. State, 415 S.W.3d 289 (Tex. Crim. App.) (preservation and review principles)
- Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App.) (knowing use of false testimony doctrine)
- Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App.) (due process and false testimony)
- Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App.) (false testimony and materiality)
- Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App.) (Strickland application)
- Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App.) (preservation/related appellate principles)
- Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App.) (404(b) and admission of extraneous offenses)