Jordan, Raleigh ( 2015 )


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  •                            NO. PD-0356-15
    IN THE TEXAS COURT OF CRIMINAL APPEALS
    NO. 01-13-00775-CR
    IN THE COURT OF APPEALS FOR THE
    FIRSTSUPREME JUDICIAL DISTRICT OF TEXAS
    AT HOUSTON
    TRIAL COURT NO. 1329597
    IN THE 209TH DISTRICT COURT
    OF HARRIS COUNTY TEXAS
    RALEIGH JORDAN, APPELLANT
    VS.
    THE STATE OF TEXAS, APPELLEE
    APPELLANTS PETITION FOR DISCRETIONARY REVIEW
    Charles Hinton
    P.O. Box 53719
    Houston, Texas 77052-3719
    (832) 603-1330
    SBOT 09709800
    May 12, 2015                   Attorney for Appellant
    chashinton@sbcglobal.net
    TABLE OF CONTENTS
    Page:
    Statement Regarding Oral Argument
    Index of Authorities
    Statement of the Case
    Statement of Procedural History
    Question for Review Number One
    WHEN THE APPELLATE RECORD CLEARLY REFLECTS THAT THE
    TRIAL COURT ADMITTED EVIDENCE AS AN EXCEPTION TO TEX.
    R. CRIM EVID. 404(b), DID THE COURT OF APPEALS ERR IN
    CONCLUDING THAT APPELLANT WAS NOT ENTITLED TO A
    LIMITING INSTRUCTION PURSUANT TO TEX. R. CRIM. EVID.
    105{a) FOR THE STATED REASON THAT THE EVIDENCE WAS
    ALSO ADMISSIBLE AS "SAME TRANSACTION CONTEXTUAL
    EVIDENCE?(RR4:6,8)"
    Argument                                               2
    Prayer for Relief                                      11
    Certificate of Service                                 12
    Certificate of Compliance                              13
    Appendix
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to TEX. R. APP. PROC. 68.4, appellant waives oral argument.
    INDEX OF AUTHORITIES
    Cases:                                                                 Page:
    Buchanan v. State,
    
    911 S.W.2d 11
    (Tex. Crim. App. 1995)                                   7
    Castaldo v. State,
    78 S.W.Sd 345 (Tex. Crim. App. 2002)                                   5
    Delgado v. State,
    235 S.W.Sd 244 (Tex. Crim. App. 2007)                                   2
    Jackson v. State,
    
    992 S.W.2d 469
    (Tex. Crim. App. 1999)                                  4
    Jordan v. State,
    NOS. 01-13-00775-CR & 01-1S-00776-CR (Tex. App. - Houston
    [1st Dist.] non-published memorandum op. issued March 10, 2015)        2, 4
    Lam v. State,
    
    25 S.W.3d 233
    (Tex. App. - San Antonio 2000)                           6
    Rogers v. State,
    
    853 S.W.2d 29
    (Tex. Crim. App. 1993)                                   10
    Westbrook v. State,
    29 S.W.Sd 103 (Tex. Crim. App, 2000)
    INDEX OF AUTHORITIES (cont'd)
    Page:
    Rules:
    Tex. R. Crim. Evid. 404(b)                                   1-4, 9-11
    Tex. R. Crim. Evid. 105(a)                                   1, 4, 10-11
    TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
    STATEMENT OF THE CASE
    On June 26, 2013, a jury found appellant guilty of the state jail felony
    offense of tampering with a government record in cause numbers 1329597 and
    1329598. The trial court assessed punishment at 2 years confinement in the state
    jail in each case; however, the trial court suspended the sentences and placed the
    appellant on community supervision for 2 years in both cases. Appellant gave
    timely notice of appeal in both cases.
    STATEMENT OF PROCEDURAL HISTORY
    On March 10, 2015, the 1st Court of Appeals issued a non-published
    memorandum opinion affirming appellant's convictions. No motion for rehearing
    was filed. Appellant now petitions for discretionary review.
    QUESTION FOR REVIEW NUMBER ONE
    WHEN THE APPELLATE RECORD CLEARLY REFLECTS THAT THE
    TRIAL COURT ADMITTED EVIDENCE AS AN EXCEPTION TO TEX.
    R. CRIM. EVID. 404(b), DID THE COURT OF APPEALS ERR IN
    CONCLUDING THAT APPELLANT WAS NOT ENTITLED TO A
    LIMITING INSTRUCTION PURSUANT TO TEX. R. CRIM. EVID.
    105(a) FOR THE STATED REASON THAT THE EVIDENCE WAS
    ALSO ADMISSIBLE AS "SAME TRANSACTION CONTEXTUAL
    EVIDENCE? {RR 4:6,8)"
    1
    ARGUMENT
    In overruling appellant's sixth issue wherein he complained of trial
    counsel's ineffectiveness in failing to request a limiting instruction after the
    admission of extraneous evidence and testimony concerning grand jury
    subpoenas, the First Court of Appeals stated that "We have already held that the
    grand jury subpoena evidence was "same transaction contextual evidence."
    "When evidence is admitted on this basis, Rule 404(b) is not implicated and the
    defendant is not entitled to any limiting instruction concerning the use of that
    evidence. Id." Jordan v. State, NOS. 01-13-00775-CR & 01-13-00776-CR (Tex. App.
    — Houston [1st Dist.] non-published op. issued March 10, 2015) at p. 22.
    Appellant concedes that this Court's opinion in Delgado v. State, 
    235 S.W.3d 244
    , 253 (Tex. Crim. App. 2007) stands for the principle, as quoted by the
    Court of Appeals, that a defendant is not entitled to a limiting instruction when
    evidence is admitted on the basis that it is "same transaction contextual
    evidence". However, appellant contends that his case is distinguishable from that
    of Delgado, 
    id. In Delgado,
    id. at 253, 
    appellant never objected to the extraneous offense
    evidence. Both the State and the trial judge implicitly concluded that the
    extraneous offense evidence was "same transaction contextual evidence".
    Significantly, the extraneous offense occurred only minutes before the offense for
    which the appellant in Delgodo was on trial.
    In appellant Jordan's instant appeal, the state, the defense, and. the judge
    all agreed that the extraneous offense evidence concerning the grand jury
    subpoenas was offered and admitted into evidence by the trial judge, over
    appellant's TEX. R. CRIM.. EVID. 404(b) objections, as an exception to 404(b). Prior
    to trial, the prosecutor, gave appellant formal notice that she intended to use
    extraneous offense evidence concerning appellant's alleged misuse of grand jury
    subpoenas (CR I: 15-16). Prior to jury selection, in response to appellant's motion
    in limine concerning extraneous offenses, the trial court instructed the
    prosecution to approach the bench before eliciting such testimony (RR 2: 7). Prior
    to calling her first witness, the prosecutor informed the trial judge that she
    intended to elicit testimony concerning the grand jury subpoenas and that she
    believed such testimony and evidence would be admissible under TEX. R. CRIM.
    EVID. 404(b) in order to establish motive, plan, absence of mistake, as well as the
    element of intent (RR 4:6).
    The appellate record clearly shows that, during appellant's jury trial, neither
    the state nor the trial judge directly or impliedly concluded that the extraneous
    offense evidence concerning the grand jury subpoenas was being offered or
    admitted into evidence as "same transaction contextual evidence". The appellate
    record does clearly reflect that the extraneous offense evidence relating to the
    grand jury subpoenas was being offered and admitted into evidence as an
    exception to 404(b), 
    id. As such,
    appellant was entitled to a limiting instruction
    pursuant to TEX. R. CR1M. EVID. 105(a).
    As this Court plainly stated in Jackson v. State, 
    992 S.W.2d 469
    , 477 (Tex.
    Crim. App. 1999):
    "... when an extraneous offense is admitted in the guilt phase of
    a trial, failing to give a limiting instruction at the time of admission
    may result in the jury drawing inferences about the defendant's
    guilt based upon character conformity, a use of the evidence that
    was not contemplated by the trial court."
    The Court of Appeals in appellant's case correctly stated that "Appellant
    argues that "Appellant's attorneys [sic] failure to request a limiting instruction
    concerning the extraneous offense evidence and testimony concerning the grand
    jury subpoenas resulted in ineffective assistance of counsel." Jordan v. State,
    NOS. 01-13-00775-CR & 01-13-00776-CR (Tex. App. - Houston [1st Dist.] non-
    published memorandum op. issued March 10, 2015) at p. 22. The Court of
    Appeals then stated that it agreed with the State's appellate response that the
    extraneous offense evidence was "same transaction contextual evidence" and
    therefore no limiting instruction was required. 
    Id., at p.
    22.
    Appellant contends that the Court of Appeals finding that the extraneous
    offense evidence was "same transaction contextual evidence" was clearly
    erroneous and conflicts with this Court of Criminal Appeal's opinions in Delgado v.
    
    State, supra, at 253
    ; Castaldo v. State, 
    78 S.W.3d 345
    (Tex. Crim. App. 2002); and
    Westbrook v. State, 
    29 S.W.3d 103
    (Tex. Crim. App. 2000).
    In 
    Delgado, supra, at 247
    , wherein this Court found that the extraneous
    offense evidence was "same transaction contextual evidence, "The prosecutor
    invoked the concept of "same transaction contextual evidence" without explicitly
    using the term. The trial judge inquired whether both events had occurred in the
    same time frame, and, when the prosecutor said that they were just minutes
    apart, the judge agreed that the evidence was admissible."
    In 
    Castaldo, supra, at 352
    , this Court agreed "that (where) appellant's
    alcohol intoxication was in fact same transaction contextual evidence, it follows
    that no limiting instruction was required." In Castaldo, the appellant was
    intoxicated on alcohol at the time of his possession of marijuana.
    In 
    Westbrook, supra, at 115
    , this Court said that "Evidence of the three
    additional killings from that evening was same transaction contextual evidence
    and, as such, admissible without a limiting instruction, (citations omitted). Such
    extraneous offenses are admissible to show the context in which the criminal act
    occurred, (citations omitted). This evidence is considered 'res gestae', under the
    reasoning that events do not occur in a vacuum, and the jury has the right to hear
    what occurred immediately prior to and subsequent to the commission of that act
    so that it may realistically evaluate the evidence. 
    Ibid. When this evidence
    of
    extraneous offenses is used to prove a main fact in the case, an instruction
    limiting the jury's consideration of this evidence is generally not required."
    Appellant suggests that it is noteworthy that, according to the only eyewitness
    evidence in the case, all 5 homicide victims appeared to have been shot almost
    simultaneously, 
    Id. at 111.
    The Court of Appeals decision concerning the concept of "same transaction
    contextual evidence" also conflicts with the explanation of the concept of "same
    transaction contextual evidence" as set forth in Lam v. State, 25 S.W.Sd 233, 237
    (Tex. App. — San Antonio 2000) wherein the Court of Appeals, citing
    Buchanan v. State, 
    911 S.W.2d 11
    ,15 (Tex. Crim. App. 1995), stated that, in order
    for extraneous offenses to be admissible under the theory of "same transaction
    contextual evidence", "the conduct must be blended or connected to the act for
    which the defendant is being tried so that they form an indivisible criminal
    transaction, such that full proof of one could not be given without showing the
    other."
    In the vast majority of cases where appellate courts have approved of the
    admissibiiity of extraneous offenses under the guise of "same transaction
    contextual evidence", the temporal proximity between the extraneous offense
    and the crime for which the appellant was on trial seemed to be a most significant
    factor of the appellate analysis.
    In appellant Jordan's instant appeal there was no temporal proximity of the
    extraneous offense evidence concerning the grand jury subpoenas with the case
    in chief offense of tampering with a government document.
    State's exhibit #43 (RR 6) entitled "Raleigh Jordan Case Timeline" clearly
    shows that, concerning HPD Current Information Report #115482609, the
    supplemental entries to the original offense report that were made in the name
    7
    of Officer Lewis were dated 9/20/2010, 11/3/2010,11/5/2010 and 6/10/2011.
    Concerning HPD Current Information Report #023382611, the original report that
    was made in the name of Officer Lewis was dated 4-12-2011.
    State's exhibit #44 (RR 6), the notary log book of witness Ms. Rebecca
    Zepeda documenting the grand jury subpoenas, reflects that she notarized 7
    grand jury subpoenas for appellant on July 13, 2011, 3 grand jury subpoenas on
    July 14, 2011 and lastly, 4 grand jury subpoena affidavits on July 18, 2011.
    Therefore, the extraneous offense evidence which the Court of Appeals
    characterized as "same transaction contextual evidence" occurred over a month
    after the last supplemental offense report entry made under the name of Officer
    Lewis concerning HPD Current Information Report Incident No. 115482609 and
    over 3 months from the date of the original offense report entry made under the
    name of Officer Lewis concerning HPD Current Information Report Incident No.
    023382611.
    Appellant contends that the lack of temporal proximity does not support
    the Court of Appeals' conclusion that the extraneous offense evidence concerning
    the grand jury subpoenas was admissible as "same transaction             contextual
    evidence".
    The Court of Appeals, in its opinion, did not directly address and analyze
    appellant's argument in issue six concerning trial counsel's failure to request a
    limiting instruction concerning the grand jury subpoena extraneous misconduct
    evidence. 
    Jordan, supra
    , at p. 20. Instead, the Court of Appeals found that, since
    the grand jury subpoena evidence was "same transaction contextual evidence",
    appellant was not entitled to a limiting instruction because Rule 404(b) was not
    implicated. Therefore, trial "Counsel was not ineffective for failing to request an
    improper limiting instruction regarding same transaction contextual evidence." 
    Id. at p.
    22-23.
    In its response to appellant's issue six concerning ineffective assistance of
    counsel, the Court of Appeals pointed out that "We have already held that the
    grand jury subpoena evidence was "same transaction contextual evidence"
    "When evidence is admitted on this basis, Rule 404(b) is not implicated and the
    defendant is not entitled to any limiting instruction concerning the use of that
    evidence." 
    Id. at p.
    22.
    However, when the Court of Appeals, addressed appellant's issue two
    concerning the admissibility of the extraneous offenses, it held that the grand jury
    subpoena evidence was admissible to show both motive pursuant to TEX. R. EVID.
    404(b) and also as "same transaction contextual evidence." 
    Id. at p.
    14. Although
    appellant disagrees with the Court of Appeals conclusion that the extraneous
    offense grand jury subpoena evidence was admissible as "same transaction
    contextual evidence", appellant contends that, since the Court of Appeals also
    found that the extraneous offense evidence was admissible to show motive
    pursuant to rule 
    404(b), supra
    , appellant was entitled to a rule 
    105(3), supra
    ,
    limiting instruction.
    Appellant would also point out that the case of Rogers v. State, 
    853 S.W.2d 29
    (Tex. Crim. App. 1993) cited by the Court of Appeals for the proposition that
    the evidence regarding the grand jury subpoenas was admissible as "same
    transaction contextual evidence", 
    Jordan, supra
    , at p. 14, was a case in which the
    Court of Criminal Appeals reversed the appellant's judgment of conviction after
    finding that the Court of Appeals erred in finding that the extraneous offense
    evidence was properly admitted as "same transaction contextual evidence". 
    Id. at 35.
    Significantly, even though there was temporal proximity since the extraneous
    offense of possession of marijuana arose out of the same arrest of the appellant
    for burglary of a habitation and possession of methamphetamine, the Court of
    Criminal Appeals stated that there was no necessity for the admission of the
    10
    extraneous offense evidence. 
    Id. at 34-35.
    Similarly, in appellant's instant appeal, the evidence of the extraneous
    offenses concerning the grand jury subpoenas was not necessary to the jury's
    understanding of the offenses of tampering with a government record. Therefore,
    the Court of Appeals erred in concluding that the extraneous offense evidence
    was admissible as "same transaction contextual evidence".
    However, as the Court of Appeals also stated, the extraneous offense
    evidence was admissible to show appellant's motive in falsifying the government
    records pursuant to TEX. R. EV1D. 404(b). 
    Jordan, supra
    , at p. 14. Therefore,
    appellant was entitled to a limiting instruction under rule 105(a).
    The Court of Appeals erred and this Court should reverse and remand
    appellant's case back to the Court of Appeals in order to analyze appellant's issue
    six.
    PRAYER FOR RELIEF
    Appellant prays that this Court grant his petition for discretionary review;
    set this case for submission; and that, after submission, reverse the judgment of
    the Court of Appeals and remand the case for further proceedings. TEX. R. APR.
    PROC. 78.1 (d).
    11
    Respectfully submitted,
    /s/Charles Hinton
    Charles Hinton
    P.O. Box 53719
    Houston, Texas 77052-3719
    chashinton@sbcglobal.net
    SBOT #09709800
    Attorney for Appellant
    CERTIFICATE OF SERVICE
    I certify that a copy of appellant's petition has been sent through the e-file
    system and served on the following parties on May 11, 2015:
    Alan Curry
    Chief Prosecutor
    Harris County District Attorney's Office
    1201 Franklin, Ste. 600
    Houston, Texas 77002-1923
    State Prosecuting Attorney
    P.O. Box 13046
    Capitol Station
    Austin, Texas 78711-3046
    /s/Charies Hinton
    Charles Hinton
    P.O. Box 53719
    Houston, Texas 77052-3719
    832-603-1330
    chashinton@sbcglobal.net
    SBOT #09709800
    Attorney for Appellant
    12
    CERTIFICATE OF COMPLIANCE
    PURSUANT TO TEX. R. APP. PROC. 9.4(i){3)
    Appellant's counsel certifies that the word count of this document is 2628.
    /s/Charles Hinton
    Charles Hinton
    P.O. Box 53719
    Houston, Texas 77052-3719
    832-603-1330
    chashinton@sbcglobal.net
    SBOT #09709800
    Attorney for Appellant
    13
    Opinion issued March 10, 2015
    In The
    o!
    For The
    Jftttt SBfetrttt of Cexas;
    NOS. 01-13-00775-CR
    01-13-00776-CR
    RALEIGH JORDAN, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 209th District Court
    Harris County, Texas
    Trial Court Case Nos. 1329597 & 1329598
    MEMORANDUM OPINION
    After a jury convicted appellant, Raleigh Jordan, of two charges of
    tampering with a government document, the trial court assessed punishment in
    each case at two years' confinement, which it suspended, placing appellant under
    two years' community supervision. In six issues on appeal, appellant contends (1)
    the evidence is legally insufficient; the trial court erred in (2) admitting extraneous
    offense evidence, and (3) denying appellant a hearing on his motion for new trial;
    (4) the State failed to turn over exculpatory evidence; (5) appellant was denied due
    process because he was unaware of the charges against him until his arraignment
    immediately before trial; and (6) appellant received ineffective assistance of
    counsel because counsel did not seek a limiting instruction for extraneous offense
    evidence. We affirm.
    BACKGROIMD
    Grand jury subpoenas raise questions
    In July 2011, Harris County Assistant District Attorney Erin Epley was
    contacted by a financial institution about a grand jury subpoena the company had
    received that had been signed by Epley. The financial institution was concerned
    because the subject of the subpoena, Lisa Heath Jordan, was married to appellant,
    the police officer to whom the financial institution was ordered to direct its reply to
    the subpoena.
    Epley recalled authorizing the grand jury subpoena, and several others at the
    same time, because she did not herself prepare the subpoenas, and it was only the
    second time she had been called upon to sign a grand jury subpoena that someone
    else had prepared. Before signing the grand jury subpoenas, she had checked to
    make sure that each had an offense report listed to show that they were being
    issued as a part of an ongoing investigation. She would not have authorized the
    subpoenas for a closed investigation, nor did she know that appellant, the officer
    requesting the subpoenas, was married to Lisa Jordan, the subject of the subpoenas.
    Because of her concerns and those of the financial institution that had
    received the grand jury subpoena, Epley contacted Internal Affairs at the Houston
    Police Department ["HPD"], which began an investigation.
    The 2009 Police Report
    Officer M. Monte was assigned to investigate the situation. He began by
    looking at the offense reports used to obtain the grand jury subpoenas. Offense
    report number 11548609T ["the 2009 report"] was initiated as a forgery
    investigation on August 7, 2009, the same day appellant's wife obtained a
    temporary restraining order against appellant because she had filed for divorce.
    The complainant on the 2009 report was listed as "Chase Bank," but the
    information in the narrative portion of the report was supplied by appellant.
    Data entry clerk C. Johnson from the Burglary/Theft division of HPD
    testified that she took the initial information from appellant for the 2009 report, in
    which he alleged that his wife was committing fraud in connection with
    government student loans. Appellant verbally described what he believed to be the
    offense, and the initial report lists 15 items of evidence. Johnson, however, did not
    recall that appellant had any evidence at the time she met with him, and the
    recovery date of the evidence listed was September 19, 2010. Johnson did not
    recall meeting with appellant at any time other that the one time in 2009.
    The 2009 report contains several supplements in addition to the initial report
    recorded by Johnson. The first two supplements are by Officer C. Graves1, the
    officer who was assigned to investigate the financial fraud that appellant alleged
    his wife had committed. Graves set up a meeting with appellant, to which he said
    he would bring evidence of his wife's crimes. However, appellant never produced
    any documents to Graves. Graves wrote in her final supplement, which is dated
    August 13, 2009, '1 explained [to appellant] that because the suspect was his
    spouse that he could not file charges on her. I explained to him that this is a
    community property state and that any monies taken, spent or charged was both of
    their responsibility. I told him. that this is a civil matter and he needed to speak to
    his attorney about the matter." Graves's supplement concluded, "This case will be
    cleared unfounded because no crime was committed."
    Graves was unaware of any further activity in the case until questioned
    about it by Officer Monte as a part of his investigation of appellant in 2011. She
    testified that she never authorized or was aware of any further supplements to the
    2009 report, but when she reviewed it at Officer Monte's request she determined
    We will refer to this witness as Lt. Graves, as that is how her name appears in the
    documentary evidence. By the time of trial, she had married and her name appears
    in the reporter's record as Lt. Southwell.
    4
    that it had been altered and added to. Specifically, evidence was added in 2010,
    Graves felt harmed by the alterations and additions to the report because it caused
    HPD to question her credibility. She was aware of no one other than appellant
    who would have benefited from the altered report. Graves also testified that, had
    the investigation remained closed, as she intended it to be, appellant could have not
    used the report to obtain his wife's financial records via grand jury subpoenas
    because a police report is necessary for issuing a grand jury subpoena.
    There were several other supplements to the 2009 report made after it was
    closed by Graves. One supplement was made by Officer Karavantos, a patrol
    officer who had worked some extra jobs with appellant, but who had moved to
    Florida by the time of trial. Four of these supplemental reports appeared to have
    been made by Officer R.T. Lewis. Lewis's name is on the supplemental reports, as
    well as his employee payroll number identifying him as the officer making the
    report. The first of Lewis's supplemental reports is dated September 20, 2010, and
    the last of bis supplemental reports is dated June 10, 2011.              Each of the
    supplements adds information or articles of evidence relating to Lisa Jordan's
    alleged crimes.
    Officer Lewis was appellant's partner at HPD at the time of the supplements,
    and he testified at trial that he never investigated appellant's wife or wrote any of
    the supplemental reports about appellant's wife.       Lewis further testified that
    appellant knew his payroll number, which was used to identify Lewis as the officer
    writing the supplement. Lewis never authorized appellant to use his payroll
    number and enter the supplemental reports. In fact, Lewis testified that he advised
    appellant not to investigate his wife himself.
    The 2011 Police Report
    In the course of his investigation regarding the grand jury subpoenas, Officer
    Monte also discovered that police report 02338261 IT ["the 2011 report"] had been
    used to support appellant's request for issuance of the grand jury subpoenas. This
    police report was dated April 12, 2011, listed appellant as the complainant, and
    alleged that Douglas Ray York and Stephen Kent Leatherman, attorneys who
    represented appellant and his wife in their pending divorce proceeding, had
    "intentionally and knowingly passed [] fraudulent court documents for the sole
    purpose to defraud and deceive [appellant]."         Again, Officer R.T. Lewis,
    appellant's partner at HPD, was listed as the officer making the report and his
    employee payroll number appears on the report.
    At trial, Officer Lewis denied making this report, giving appellant the
    authority to use his name and payroll number in making this report, or conducting
    any investigation relating to appellant's wife.
    The Computer Forensics
    HPD Officer Matthew Lezak, a computer forensic specialist, was asked to
    examine the hard drive on appellant's work computer as a part of the internal
    affairs investigation. Lezak testified that each time an officer would upload a
    report, the system would create a report receipt. Appellant's computer had 48
    report receipts. Of those 48 receipts, 40 of them were to appellant's own payroll
    number. However, four of the receipts—three supplements to the 2009 report and
    the initial 2011 report—had Officer Lewis's payroll number. Thus, the forensic
    computer evidence showed that those four entries were made from appellant's
    computer using Lewis's payroll number. Additionally, the face of the reports
    themselves indicate that three supplements purportedly made by Lewis to the 2009
    report and the 2011 report were made from appellant's computer—HP DC6005
    319808.
    Lezak also found letters on HPD City of Houston letterhead, which were
    addressed to 10 different financial institutions and were meant to accompany the
    grand jury subpoenas. The letters stated, "Please direct your reply to the personal
    attention of Officer Jordan; as stated on the face of this Subpoena."
    Other Evidence
    F. Quinn, appellant's sergeant in the Major Offender's division at HPD,
    testified that appellant's pending divorce "seemed to kind of consume him."
    Quinn never gave appellant permission to investigate his wife, but told him to have
    the financial crimes unit investigate it instead. Quinn stated, "I told him, I gave
    him a direct order not to conduct that investigation, not to use a computer to obtain
    information about her or any kind of city equipment involving that investigation."
    Quinn also testified about the importance of maintaining the integrity of
    police reports: "Well, the integrity has to be maintained. There shouldn't be any
    exception. It's critical, it's critical we be able, to rely on those reports and those
    reports be truthful and reflect nothing other than the truth."
    Finally, Quinn testified that after the investigation began he received at least
    seven envelopes addressed to appellant at the Major Crimes Division containing
    financial records relating to Lisa Jordan.
    Appellant charged with tampering with government records
    As a result of the internal affairs investigation, appellant was arrested and
    charged with tampering with government records, specifically, the 2009 and 2011
    police reports. The State alleged that appellant made false entries in the reports by
    entering information in the reports using Officer Lewis's name and employee
    payroll number.
    SUFFICIENCY OF THE EVIDENCE
    In issue one, appellant contends the evidence is legally insufficient.
    Specifically, appellant argues that because the author of the supplemental reports is
    unknown and no witness "testified as to who actually made the entries," the
    evidence is legally insufficient to show that appellant altered the police reports.
    Standard of review and applicable law
    We review the legal sufficiency of the evidence by considering all of the
    evidence "in the light most favorable to the prosecution" to determine whether any
    "rational trier of fact could have found the essential elements of the offense beyond
    a reasonable doubt:9 Jackson v. Virginia, 
    443 U.S. 307
    , 318-19, 99 S. Ct 2781,
    2788-89 (1979). The standard is the same for both direct and circumstantial
    evidence casQS.King v. State, 
    895 S.W.2d 701
    , 703 (Tex. Grim. App. 1995) (en
    bane) (citing McGoldrickv. State, 
    682 S.W.2d 573
    , 577 (Tex. Grim. App. 1985)).
    Our role is that of a due process safeguard, ensuring only the rationality of the trier
    of fact's finding of the essential elements of the offense beyond a reasonable
    doubt. See Moreno v. State, 
    755 S.W.2d 866
    , 867 (Tex. Grim. App. 1988). We give
    deference to the responsibility of the fact finder to fairly resolve conflicts in
    testimony,     weigh evidence,     and   draw reasonable inferences from              the
    facts. Williams v. State, 
    235 S.W.3d 742
    , 750 (Tex, Grim. App. 2007). However,
    our duty requires us to "ensure that the evidence presented actually supports a
    conclusion that the defendant committed" the criminal offenses of which he is
    accused. 
    Id. Section 37.10
    of the      Texas ' Penal         Code,    titled    "Tampering   With
    Governmental Record," states in relevant part, "A person commits an offense if he:
    (1) knowingly makes a false entry in, or false alteration of, a governmental,
    record." TEX. PENAL CODE ANN. §37.10(a)(l) (Vernon Supp. 2013). Apart from
    exceptions not applicable here, an offense under section 37.10 is a Class A
    misdemeanor unless the actor's intent is to defraud or harm another, in which event
    the    offense     is    a   state   jail         felony.     See TEX.     PENAL      CODE
    Aw. § 37.10(c)(l) (Vernon Supp. 2008). The term defraud is not defined, and
    ctundeflned   statutory terms are to be understood as ordinary usage allows, and
    jurors may freely read statutory language to have any meaning which is acceptable
    in common parlance." Hunter v. State, No. 14-13-00847-CR, 
    2014 WL 6923116
    ,
    at *3 (Tex. App.—Houston [14th DistJ Dec. 9, 2014, pet. filed) (mem. op, not
    designated for publication) (citing Clinton v. State, 
    354 S.W.3d 795
    , 800 (Tex.
    Grim. App. 2011)).
    Analysis
    Appellant contends the evidence does not support his convictions because
    "Karavantos was not present to deny that he did not make the entries in the [2009]
    reportfj" and neither Lewis "nor the other witnesses testified as to who actually
    made the entries."      The State responds that there is sufficient circumstantial
    evidence to support the jury's verdict. We agree with the State.
    1.0
    Lewis testified that he did not investigate appellant's wife, he did not make
    the entries into either police report, and he did not authorize appellant to do so
    using Lewis's name and employee payroll number. Additionally, several of the
    reports and supplements attributed to Lewis were made from appellant's work
    computer, which was password protected. No other person, including the absent
    Karavantos, had a motive to enter supplements or reports and falsely attribute them
    to Lewis. Appellant, however, had the motivation to file such reports by reopening
    the closed investigation and starting a new investigation against the divorce
    lawyers in his case so that he could obtain his wife's financial records through a
    grand jury subpoena, which requires an active investigation. And, by using Officer
    Lewis's payroll number to make the supplements and reports, appellant created the
    appearance that an impartial investigator was working on the case.           Indeed,
    Assistant District Attorney Epley testified that she would not have signed the grand
    jury subpoenas had she known they were for appellant's wife's records.
    Based on this evidence, the jury could have reasonably concluded that
    appellant made a false entry in a government document by making entries in both
    reports after the first case had been closed and falsely attributing those entries to
    Lewis.
    We overrule issue one.
    11
    EXTRANEOUS OFFENSES
    In issue two, appellant argues that the Court's decision to admit evidence of
    extraneous acts, namely of the filing of the grand jury subpoenas, was reversible
    error. Specifically, appellant argues that "[t]he admittance of [evidence relating to
    the grand jury subpoenas] greatly influenced the jury into finding [appellant] guilty
    on both counts, although the evidence of filing grand jury subpoenas [was]
    irrelevant to the charges of tampering with a governmental record, especially since
    the State approved the grand jury subpoenas."
    Standard ofrevie\v and applicable law
    We review a trial court's admission or exclusion of extraneous-offense
    evidence for abuse of discretion, Moses v. State, 105 S.W.Sd 622, 627 (Tex. Grim.
    App. 2003). A trial court's decision regarding admissibility of evidence will be
    sustained if correct on any theory of law applicable to the case, even when the
    court's underlying reason for the decision is wrong. Romero v. State, 
    800 S.W.2d 539
    , 543-44 (Tex. Grim. App. 1990). Rule 404(b) provides that evidence of "other
    crimes, wrongs or acts" is inadmissible to prove a defendant's character in order to
    show action in conformity therewith. TEX. R. EvTD, 404(b). This type of evidence
    may be admissible for other purposes, such as proof of motive, opportunity, intent,
    preparation,   plan,   knowledge,     identity,   or   absence    of   mistake    or
    accident. Id;Swarb v. State, 
    125 S.W.3d 672
    , 681 (Tex. App.—Houston [1st
    12
    Dist] 2003, pet. dism'd). This list is not exclusive. Turner v. State, 
    754 S.W.2d 668
    , 672 (Tex. Crim. App. 1988). Also, "events do not occur in a vacuumf,]" and
    evidence of extraneous offenses may be admissible "[t]o show the context in which
    the criminal act occurred." Albrecht v. State, 
    486 S.W.2d 97
    , 100 (Tex. Crim. App.
    1972); see also Rogers v. State, 
    853 S.W.2d 29
    , 32-33 (Tex. Crim. App.
    1993) (discussing admissibility of same transaction contextual and background
    evidence).
    Analysis
    The State contends that the evidence regarding the issuance of the grand jury
    subpoenas was admissible for two reasons: (1) to show appellant's motive in
    falsifying the police reports, and (2) as "same transaction contextual evidence."
    We agree with both arguments.
    Regarding motive, there was testimony that appellant needed a police report
    to obtain a grand jury subpoena. The ADA testified that she would not issue a
    grand jury subpoena unless there was a valid police investigation. The State
    showed that his motivation for falsifying the reports using Lewis's information was
    to reopen the 2009 case and to initiate the 2011 case so that appellant could then
    use grand jury subpoenas to obtain his wife's financial information for use in his
    pending divorce. Without showing evidence of appellant's motive, i.e., that he
    needed valid police investigations to obtain grand jury subpoenas, the evidence of
    13
    his falsifications of the police reports would have made little sense. As such, the
    evidence of the grand jury subpoenas was admissible to show appellant's motive in
    falsifying the government records. See TEX. R. Evro. 404(b).
    For the same reason, the evidence regarding the grand jury subpoenas was
    admissible as "same transaction contextual evidence."
    Same transaction contextual evidence is deemed admissible as a so-
    called exception to the propensity rule where "several crimes are
    intermixed, or blended with one another, or connected so that they
    form an indivisible criminal transaction, and full proof by testimony,
    whether direct or circumstantial of any one of them cannot be given
    without showing the others." The reason for its admissibility "is
    simply because in narrating the one it is impracticable to avoid
    describing the other, and not because the other has any evidential
    purpose." Necessity, then, seems to be one of the reasons behind
    admitting evidence of the accused's acts, words and conduct at the
    time of the commission of the offense. Necessity, then is an "other
    purpose" for which same transaction contextual evidence is
    admissible under Rule 404(b). Only if the facts and circumstances of
    the instant offense would make little or no sense without also bringing
    in the same transaction contextual evidence, should the same
    transaction contextual evidence be admitted.
    Rogers v. State, 
    853 S.W.2d 29
    , 33 (Tex. Grim. App. 1993) (citations omitted).
    As we stated above, without showing that appellant needed valid investigations to
    obtain grand jury subpoenas, the evidence of his falsifications of the police reports
    would have made little sense. As such, the evidence regarding the issuance of the
    grand jury subpoenas was also admissible as "same transaction contextual
    evidence."
    We overrule issue two.
    14
    MOTION FOR NEW TRIAL
    In issue three, appellant "asserts that his constitutional rights were denied by
    not having a hearing on his Motion for New Trial."
    Background
    The trial court imposed judgment on July 26, 2013; and appellant timely
    filed a Motion for New Trial on August 23, 2013, which alleged ineffective
    assistance of counsel, among other claims. See TEX. R. APP. P. 21.4(a) (stating
    motion for new trial must be filed no later than 30 days after the court imposes
    sentence). However, appellant's motion did not include any affidavit in support of
    the allegations made therein.
    The docket sheet shows that the Motion for New Trial hearing was reset
    several times, twice by agreement of both parties and once at appellant's request.
    No hearing was ever held. Instead, on December 8, 2013, appellant filed a Bench
    Brief in Support of his Motion for New Trial, which for the first time contained an
    affidavit by appellant in support of the allegations set forth in his motion. The
    State also filed the affidavit of appellant's trial counsel, refuting the ineffective
    assistance of counsel allegations in appellant's motion.
    Appellant's Motion for New Trial was overruled by operation of law two
    days later on October 10, 2013. See TEX. R. APP. P. 21.8 (allowing trial court 75
    days to rule on motion for new trial or deeming motion denied on 76* day).
    15
    Standard of review and applicable law
    The trial court has a duty to hold an evidentiary hearing on a defendant's
    motion for new trial if the motion and accompanying affidavit raise an issue (1)
    that is not determinable from the record, and (2) on which the defendant could be
    granted relief. Lucero v. State, 
    246 S.W.3d 86
    , 94 (Tex. Grim. App. 2008). When
    the motion raises matters that are not determinable from the record, to prevent
    "fishing expeditions/' the motion must be supported by an affidavit that explicitly
    sets out the factual basis for the claim. Smith v. State, 286 S.W.Sd 333, 339 (Tex.
    Crim. App. 2009). The affidavit does not need to establish aprimafacie case or
    even reflect every component to obtain relief on the claim, but must merely reflect
    "reasonable grounds" for a court to hold that relief could be granted. Wallace v.
    State, 
    106 S.W.3d 103
    , 108 (Tex. Crim. App. 2003). Where a defendant asserts
    that he is entitled to a hearing on a motion for new trial raising ineffective
    assistance of counsel, the motion and affidavit "must allege sufficient facts from
    which a trial court could reasonably conclude both that counsel failed to act as a
    reasonably competent attorney and that, but for counsel's failure, there is a
    reasonable likelihood that the outcome of his trial would have been
    different." 
    Smith, 286 S.W.3d at 341
    (emphasis in original).
    We review the trial court's decision on whether to hold a hearing on a
    defendant's motion for new trial for abuse of discretion. 
    Lucero, 246 S.W.3d at 94
    .
    16
    A trial court abuses its discretion only when its decision lies outside the zone of
    reasonable disagreement. Smith, 286 S.W.Sd at 339.
    Analysis
    Here, appellant's Motion for New Trial, though timely, did not have a
    supporting affidavit. A motion for new trial alleging facts outside the record, as
    here, is not a proper pleading and is defective; a trial court does not err in refusing
    to grant a hearing on such a motion. Klapesky v. State, 
    256 S.W.3d 442
    , 454 (Tex.
    App.—Austin 2008, pet. ref d); see also 
    Wallace, 106 S.W.3d at 108
    .
    Appellant's affidavit in support of his Motion for New Trial was not filed
    until December 8, 2013, several months after the time for filing amended Motions
    for New Trial. See TEX. R. APP. P. 21.4 ("Within 30 days after the date when the
    trial court imposes or suspends sentence in open court but before the court overrule
    any preceding motion for new trial, a defendant may, without leave of court, file
    one or more amended motions for new trial."). Filing an affidavit in support of a
    motion for new trial more than thirty days after sentencing is considered an
    untimely attempt to amend the motion. 
    Klapesky, 256 S.W.3d at 455
    (citing
    Dugard v. State, 
    688 S.W.2d 524
    , 529-30 (Tex. Grim. App. 1985), overruled on
    other grounds by Williams v. State, 
    780 S.W.2d 802
    , 803 (Tex. Grim. App. 1989);
    Flores v. State, 
    18 S.W.3d 796
    , 798 (Tex. App.—Austin 2000, no pet.)).
    17
    Because appellant's untimely affidavit was not properly before the trial
    court, the trial court did not err in refusing to grant a hearing on appellant's
    unsupported motion.
    We overrule issue three.
    EXCULPATORY EVIDENCE
    In his issue four, appellant contends the prosecution failed to disclose
    exculpatory evidence—his own recorded statement—in violation of Brady v.
    Maryland, 
    373 U.S. 83
    (1963).
    Applicable law
    In Brady, the United States Supreme Court held "'that the suppression by the
    prosecution of evidence favorable to an accused upon request violates due process
    where the evidence is material either to guilt or to punishment, irrespective of the
    good faith or bad faith of the prosecution."' Pena v. State, 
    353 S.W.3d 797
    , 809
    (Tex. Grim. App. 2011) (quoting 
    Brady, 373 U.S. at 87
    ). "The scenarios to
    which Brady applies 'involve[ ] the discovery, after trial of information which had
    been known to the prosecution but unknown to the defense.'"/^, at
    810 (quoting United States v. Agurs, 
    427 U.S. 97
    , 103 (1976)). Consequently, the
    State does not have a duty to disclose if the defendant is actually aware of
    the exculpatory evidence. 
    Id. 18 Analysis
    In this case, the exculpatory evidence of which appellant complains is his
    own recorded statement.      No disclosure was required because appellant was
    actually aware of the contents of his own statement. Further, the record shows that
    the State provided notice of its intent to offer the statement into evidence almost a
    year before the trial, even though, ultimately it was not admitted.
    We overrule issue four.
    DUE PROCESS
    In issue five, appellant contends he was denied due process of law because
    "he was arraigned on the same day as the trial," and "was not aware until the trial,
    of the charge against him." However, the record shows that appellant was, in fact,
    arraigned at a pretrial hearing the day before the trial started. An arraignment is
    not apart of a trial by jury and is one of the proceedings that can be disposed of by
    a pre-trial hearing. Woodv. State, 
    515 S.W.2d 300
    , 303 (Tex. Grim. App. 1974).
    To the extent that appellant is complaining that the indictment did not
    provide him notice of the charged offense, we note that appellant never filed a
    motion to quash or otherwise complained to the trial court that he was unaware of
    the charges against him.        Article 1.14 of the Texas Code of Criminal
    Procedure provides that a defendant waives the right to object to a defect, error, or
    irregularity of form or substance in an indictment if he does not object before the
    19
    date on which the trial on the merits commences. TEX. CODE CRIM. PROC. ANN. art.
    1.14 (Vernon 2005. By failing to object or moving to quash the indictment before
    the date of his trial, appellant has waived his complaint regarding lack of
    notice. See TEX. CODE CRIM. PROC. ANN. art. 1.14.
    We overrule issue five.
    INEFFECTIVE ASSISTANCE OF COUNSEL
    In issue six, appellant contends that he received ineffective assistance of
    counsel because his trial attorney did not "request a limiting instruction concerning
    the grand jury subpoena extraneous misconduct evidence[.]"
    Standard of Review and Applicable Law
    We consider claims of ineffective assistance of counsel under the two-prong
    test adopted in Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 2064
    (1984). To prevail on an ineffective assistance of counsel claim, appellant must
    show that (1) counsel's performance was deficient, meaning it fell below an
    objective standard of reasonableness, and (2) the deficiency prejudiced the
    defendant, meaning there was a reasonable probability that, but for the counsel's
    deficient performance, the results of the trial would have been different. Id; Ex
    parteNapper, 322 S.W.Sd 202, 246, 248 (Tex. Grim. App. 2010). The burden is on
    appellant to prove by a preponderance of the evidence that counsel was
    ineffective. See McFarlandv. State, 
    928 S.W.2d 482
    , 500 (Tex. Grim. App. 1996).
    20
    The first prong of Strickland requires that the challenged acts or omissions
    of counsel fall below the objective standard of professional competence under
    prevailing professional norms.Perez v. State,3lQ S.W.Sd 890, 893 (Tex. Grim.
    App. 2010). Appellate courts are highly deferential to trial counsel and avoid
    evaluating counsel's conduct in hindsight. Ingham v. State, 
    679 S.W.2d 503
    , 509
    (Tex. Crim. App. 1984). Thus, courts must "indulge a strong presumption that
    counsel's conduct falls within the wide range of reasonable professional assistance;
    that is, the defendant must overcome the presumption that, under the
    circumstances,   the   challenged    action    might   be    considered sound trial
    strategy." 
    Strickland, 466 U.S. at 689
    , 104 S. Ct at 2065.
    The second prong of Strickland requires a reasonable probability that the
    outcome of the case would have been different. Id at 
    694, 104 S. Ct. at 2068
    . A
    reasonable probability is a probability sufficient to undermine confidence in the
    outcome, meaning that counsel's errors must be so serious that they deprive
    appellant of a fair trial. 
    Smith, 286 S.W.3d at 340
    .
    Allegations of ineffectiveness must be firmly founded in the record, and the
    record must affirmatively demonstrate the ineffectiveness. Mallett v. State, 
    65 S.W.3d 59j
    63 (Tex. Crim. App. 2001). "In the rare case in which trial counsel's
    ineffectiveness is apparent from the record, an appellate court may address and
    dispose of the claim on direct appeal." Lopez v. State, 
    343 S.W.3d 137
    , 143 (Tex.
    21
    Crim. App. 2011). When the record is silent as to the reasoning behind an alleged
    deficiency by trial counsel, "we will assume that counsel had a strategy if any
    reasonably sound strategic motivation can be imagined." Id.; see also Garcia v.
    State, 
    57 S.W.3d 436
    , 440 (Tex. Crim. App. 2001) ("[I]n the absence of evidence
    of counsel's reasons for the challenged conduct, an appellate court . . . will not
    conclude the challenged conduct constituted deficient performance unless the
    conduct was so outrageous that no competent attorney would have engaged in it.").
    Analysis
    Appellant argues that "Appellant's attorneys [sic] failure to request a
    limiting instruction concerning the extraneous offense evidence and testimony
    concerning the grand jury subpoenas resulted in ineffective assistance of counsel."
    The State responds that no limiting instruction is required for same-transaction
    contextual evidence. We agree with the State.
    "Same transaction contextual evidence" refers to those events and
    circumstances that are intertwined, inseparable parts of an event that, if viewed in
    isolation, would make no sense at all. Delgado v. State, 
    235 S.W.3d 244
    , 253
    (Tex. Crim. App. 2007). We have already held that the grand jury subpoena
    evidence was "same transaction contextual evidence."           "When evidence is
    admitted on this basis, Rule 404(b) is not implicated and the defendant is not
    entitled to any limiting instruction concerning the use of that evidence. 
    Id. Counsel 22
    was not ineffective for failing to request an improper limiting instruction regarding
    same transaction contextual evidence.
    We overrule issue six.
    CONCLUSION
    We affirm the trial court's judgments.
    Sherry Radack
    Chief Justice
    Panel consists of Chief Justice Radack and Justices Bland and Huddle.
    Do not publish. TEX. R. APP. P. 47.2(b).
    23
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