Deatric Jermaine Alexander v. the State of Texas

NO. 12-22-00112-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DEATRIC JERMAINE ALEXANDER, § APPEAL FROM THE 2ND
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION
Deatric Jermaine Alexander appeals his conviction for continuous sexual abuse of a child.
In three issues, Appellant argues that the trial court erred by denying a requested limiting
instruction and admitting evidence of jury deliberations during the hearing on his motion for new
trial, and he contends that Rule 34.6 of the Texas Rules of Appellate Procedure is unconstitutional
as applied to him. We affirm.

BACKGROUND
Appellant is the stepfather of the victim, K.P.C., who was sixteen years old at trial. K.P.C.
testified that when she was approximately three years old, Appellant entered her room and asked
her to “suck his toe.” K.P.C. explained that when she was about twelve years old, she realized that
Appellant was actually putting his penis into her mouth. K.P.C. also testified that when she was
twelve years old, Appellant entered her room in the middle of the night and touched her vagina
with his hand. According to K.P.C., Appellant did this two to three times per week. K.P.C.
eventually made an outcry to her grandmother.
K.P.C. explained that she exchanged emails or text messages with a friend after she made
her outcry. When the prosecutor asked, “what was the nature of those texts or emails[,]” defense
counsel objected that the question called for hearsay. The prosecutor stated, “if she’s not truthful
in some of the things she said to this person, I anticipate the [d]efense will cross examine and have
an opportunity to go into a statement made by a witness. But something they said to that is not
hearsay.” The prosecutor stated that he was not offering the statement to prove the truth of the
matter asserted, and trial judge overruled the objection. Defense counsel asked for a limiting
instruction, and the trial judge responded, “I’m going to overrule the objection. And at some point
we might need to give them a limiting instruction[,] but at this point I’ve got to hear the testimony.”
K.P.C. then testified that she “told him that [Appellant] had sex with me[,]” and she explained that
her statement to her friend was not completely truthful. K.P.C. explained that she gave truthful
statements to her grandmother, the SANE nurse, and during an interview at the Child Advocacy
Center. SANE nurse Sue Hinson testified that she examined K.P.C., and K.P.C. told Hinson that
Appellant touched her “with a finger down into her vaginal area.” Appellant testified that he never
touched K.P.C. inappropriately or put his penis into her mouth. T.S., a victim in an extraneous
offense, testified that when she was between seven and ten years of age, Appellant pulled her shirt
up and licked around her breasts, and she explained that Appellant also touched her vagina with
his hand.
The jury found Appellant “guilty” and assessed punishment at seventy years of
confinement. Appellant filed a motion for new trial, in which he contended that trial counsel
provided ineffective assistance. After Appellant filed a notice of appeal, this Court received a
letter from one of the court reporters, in which she advised that due to her external hard drive
crashing, she is unable to recover files for pretrial hearings that occurred on March 4, 2019, and
October 7, 2019. We ordered the trial court to conduct a hearing and to make written findings of
fact regarding whether a portion of the record has been lost or destroyed and whether there are any
inaccuracies in the record. Additionally, we ordered the trial court to determine whether (1) the
missing portion of the record is necessary to the resolution of Appellant’s appeal, (2) the missing
portion of the record can be replaced by stipulation or the agreement of the parties, and (3)
Appellant is entitled to a new trial pursuant to Rule 34.6(f) of the Texas Rules of Appellate
Procedure.
The trial court conducted an evidentiary hearing, during which trial counsel testified that
his defensive theory was that Appellant did not commit the offense. Counsel explained that he
and Appellant believed that K.P.C. was “being coached by her aunt and her grandmother.” Trial
counsel testified that after trial, his investigator contacted some of the jurors. Appellant’s new

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counsel objected that (1) the jury’s deliberations “should remain private” and (2) evidence
regarding the jury’s deliberations is inadmissible. The trial court overruled the objection. Trial
counsel then testified that his investigator told him there was nothing he could have done
differently, and that the jurors “had a lot of good things to say” about his representation of
Appellant. Appellant’s counsel obtained a running objection to trial counsel’s testimony on this
topic, and trial counsel then testified that the jury found Appellant “guilty” largely because it found
K.P.C. and T.S. credible. During the hearing, Appellant’s counsel asked the court to find that Rule
34.6(f) is unconstitutional as applied to Appellant because it violates his right to due process.
Counsel pointed out that Appellant asserted a claim of ineffective assistance against trial counsel,
and he stated, “I have no idea what’s in those [missing] hearings yet the burden falls to me to prove
that those are somehow essential.” 1
Ultimately, the trial judge overruled Appellant’s motion for new trial and filed findings of
facts and conclusions of law, in which he concluded that trial counsel was not ineffective. The trial
judge also filed findings of fact and conclusions of law regarding the missing reporter’s records.
The trial judge found that (1) the court reporter cannot locate the record of two pretrial hearings
due to the crash of her hard drive, (2) Cherokee County took reasonable steps to recover the lost
records, (3) the court reporter would testify that the records are not recoverable, (4) trial counsel
would testify that the lost records of the two pretrial hearings are not necessary to resolution of the
appeal because “only announcements of ready or proposed trial dates were heard, and no contested
hearings as to discovery, the law, or any evidentiary hearings occurred on these dates,” and (5) the
trial court’s docket entries are consistent with what trial counsel would say if he testified. The trial
judge concluded that (1) the two missing records of the two pretrial hearings are not necessary to
the resolution of Appellant’s appeal because only announcements of ready or proposed trial dates
were heard and “nothing was heard [regarding] any substantive issue[,]” (2) Appellant is not
entitled to a new trial under Rule 34.6(f), and (3) Rule 34 “is not unconstitutional.” This appeal
followed.

1
Appellant does not assert ineffective assistance of counsel as an issue in this appeal.

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LIMITING INSTRUCTION REGARDING HEARSAY
In issue one, Appellant argues that the trial court erred by refusing to give a requested
limiting instruction to the jury regarding the messages K.P.C. sent to her friend. Appellant
contends that a limiting instruction was required because the messages are hearsay.
Standard of Review and Applicable Law

We review the trial court’s refusal to give a limiting instruction for an abuse of discretion.
See Shea v. State, 167 S.W.3d 98, 103-04 (Tex. App.—Waco 2005, pet. ref’d). Rule 105(a) of
the Texas Rules of Evidence provides as follows: “If the court admits evidence that is admissible
against a party or for a purpose—but not against another party or for another purpose—the court,
on request, must restrict the evidence to its proper scope and instruct the jury accordingly.” TEX.
R. EVID. 105(a). The language of Rule 105(a) requires, upon proper request, a limiting instruction
to be given when the evidence is admitted. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim.
App. 2001). The failure to give a timely limiting instruction under Rule 105(a) is nonconstitutional
error. See Jones v. State, 119 S.W.3d 412, 423-24 (Tex. App.—Fort Worth 2003, no pet.).
We may not reverse for nonconstitutional error unless, after examining the entire record,
we have fair assurance that the error did not have a substantial and injurious effect or influence in
determining the jury’s verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). We
disregard any error that does not affect the defendant’s substantial rights. TEX. R. APP. P. 44.2;
see also TEX. R. EVID. 103(a). We must affirm the conviction if, after examining the record as a
whole, “we are left with the fair assurance that the [alleged] error did not influence the jury or
influenced the jury only slightly.” Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.—Dallas 2002,
no pet.). To determine whether the error affected Appellant’s substantial rights, we must consider
all the evidence, the nature of the evidence supporting the verdict, and the character of the alleged
error. Id. (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).
Analysis

To determine whether the trial court erred by refusing to give a limiting instruction, we
first consider whether the proffered testimony constituted hearsay. Hearsay is an out-of-court
statement offered “in evidence to prove the truth of the matter asserted in the statement.” TEX. R.
EVID. 801(d). Hearsay is inadmissible except as provided by statute, the rules of evidence, or “other
rules prescribed under statutory authority.” TEX. R. EVID. 802.

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As discussed above, the prosecutor explained that the State offered K.P.C.’s testimony
about messaging her friend that Appellant had sex with her, which she admitted was not completely
true, in anticipation of the defense impeaching her credibility. See TEX. R. EVID. 801(d). The
State did not offer the testimony to prove the truth of the matter asserted in the statement. In
addition, even if K.P.C.’s testimony constituted hearsay, after examining the record as a whole,
including the nature of the evidence supporting the verdict and the nature of the alleged error, we
have fair assurance that the trial judge’s refusal to give the jury a limiting instruction did not
influence the jury or influenced the jury only slightly, and did not affect Appellant’s substantial
rights. See Wilson, 90 S.W.3d at 393-94; see also TEX. R. APP. P. 44.2(b). Accordingly, we
overrule issue one.

EVIDENCE OF JURY DELIBERATIONS
In his second issue, Appellant argues that the trial court erred by admitting evidence
concerning the jury’s deliberations during the hearing on his motion for new trial. Appellant urges
this Court to either remand the case for a new trial or for a new hearing on his motion for new trial.
Standard of Review and Applicable Law
The trial court is the factfinder at a hearing on a motion for new trial. Okonkwo v. State,
398 S.W.3d 689, 694 (Tex. Crim. App. 2013). We review the trial judge’s admission of evidence
for abuse of discretion. See Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Devoe
v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). A trial court’s erroneous admission of
evidence is generally nonconstitutional error. Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim.
App. 2002); Stovall v. State, 140 S.W.3d 712, 718 (Tex. App.—Tyler 2004, no pet.). We must
disregard any nonconstitutional error that does not affect an appellant’s substantial rights. TEX. R.
APP. P. 44.2(b). The erroneous admission of evidence does not affect substantial rights if the
appellate court, after examining the record as a whole, has fair assurance that the error did not
influence the factfinder or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001).
Rule 606(b)(1) of the Texas Rules of Evidence provides that during an inquiry into the
validity of a verdict, a court may not receive evidence of a juror’s statement regarding the effect
of anything on that juror’s vote, another juror’s vote, or any juror’s mental process concerning the
verdict. TEX. R. EVID. 606(b)(1). The only exceptions to this rule are that a juror may testify (1)

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about whether an outside influence was improperly brought to bear on any juror and (2) to rebut a
claim that the juror was not qualified to serve. TEX. R. EVID. 606(b)(2).
Analysis
As discussed above, at the hearing on the motion for new trial, trial counsel testified that
his investigator told him (1) jurors said there was nothing trial counsel could have done differently,
(2) jurors “had a lot of good things to say” about his representation of Appellant, and (3) the jury
believed the testimony of K.P.C. and T.S. Such testimony by trial counsel regarding the jury’s
deliberations is prohibited by the express language of Rule 606(b)(1) and does not fall within either
of the exceptions provided in Subsection (b)(2). See TEX. R. EVID. 606(b)(1), (2). We therefore
conclude that the trial court erred by admitting said evidence. See id.
We turn now to the question of whether the trial court’s error affected Appellant’s
substantial rights. The trial judge presided over the trial and therefore observed trial counsel’s
representation of Appellant throughout. After reviewing the entire record, we have fair assurance
that the admission of trial counsel’s testimony regarding the jury’s deliberations and jurors’
opinions of counsel’s performance did not influence the trial judge in his role as factfinder at the
motion for new trial or had but slight effect. See TEX. R. APP. P. 44.2(b); Solomon, 49 S.W.3d at
365. Accordingly, we overrule issue two.

CONSTITUTIONALITY OF RULE 34.6(F)
In his third issue, Appellant contends that Rule 34.6(f) of the Texas Rules of Appellate
Procedure is unconstitutional as applied to him. Specifically, Appellant complains that Rule 34.6
requires his appellate counsel to establish that the missing portions of the record are necessary to
his appeal, yet “counsel did not represent Appellant at trial, did not know what was in the record,
and had made a claim of ineffective[]assistance against trial counsel.”
Standard of Review and Applicable Law
When confronted with an attack on the constitutionality of a statute or rule, we presume
that it is valid. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The party attacking
the rule bears the burden of establishing that it is unconstitutional. Id. An appellant’s claim that
a rule is unconstitutional “as applied” asserts that the rule, although generally constitutional,
operates unconstitutionally as applied to him in his situation. Gillenwaters v. State, 205 S.W.3d
534, 536 n.3 (Tex. Crim. App. 2006).

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Rule 34.6(f) of the Texas Rules of Appellate Procedure provides that an appellant is entitled
to a new trial under the following circumstances:

(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes
and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant
portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is
necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the
parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a
copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.

TEX. R. APP. P. 34.6(f).
Analysis
As discussed above, we ordered the trial court to conduct a hearing and to make written
findings of fact regarding whether a portion of the record has been lost or destroyed and whether
there are any inaccuracies in the record, and we further ordered the trial court to determine, among
other things, whether the missing portion of the record is necessary to the resolution of Appellant’s
appeal. The trial court found that trial counsel would testify that the lost record on the two dates
in question consisted only of announcements of ready or proposed trial dates, and the trial court
further found that its docket entries are consistent with what trial counsel would testify to.
Additionally, the trial court concluded that Rule 34.6(f) is not unconstitutional.
The crux of Appellant’s argument seems to be that because appellate counsel was not
present at the hearings for which the record has been lost, Rule 34.6(f) is unconstitutional as
applied to him because it denies him due process. We disagree. Rule 34.6(f)(3) provides that a
new trial may be granted only if the missing portion of the record is necessary to the appeal’s
resolution. TEX. R. APP. P. 34.6(f)(3); Isaac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App.
1999). “That provision is itself a harm analysis. If the missing portion of the record is not
necessary to the appeal’s resolution, then the loss of that portion of the record is harmless under
the rule, and a new trial is not required.” Isaac, 989 S.W.2d at 757. “In enacting that provision
of the rule, [the Court of Criminal Appeals] necessarily rejected the contention that a missing
record could never be found unnecessary to an appeal’s resolution.” Id. Rule 34.6(f)’s
requirement that the missing record be necessary to the appeal “was meant to mitigate against the
harshness of a rule that might require a new trial even when no error actually occurred in the

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proceedings.” Nava v. State, 415 S.W.3d 289, 306 (Tex. Crim. App. 2013). “When an appellant
has not been harmed by the missing portion of the record, he should not be granted relief.” Id.
In this case, the trial judge conducted an evidentiary hearing and found that the hearings
on the two dates in question consisted only of announcements of ready or proposed trial dates. The
trial court also found that its docket entries are consistent with what trial counsel would testify to
about the matter. Appellant had access to a full record of his trial, from voir dire through
punishment, as well as all pretrial hearings except for two. The fact that counsel, in his reply brief,
suggests entirely speculative, hypothetical scenarios that could have transpired at the two pretrial
hearings, such as comments indicating ineffective assistance of counsel, a racial motivation for the
prosecution, or lack of impartiality by the trial judge, do not render Rule 34.6(f) unconstitutional
as applied to Appellant. We conclude that Rule 34.6 of the Texas Rules of Appellate Procedure is
not unconstitutional as applied to Appellant. See; Nava, 415 S.W.3d at 306; Isaac, 989 S.W.2d at
757; see also TEX. R. APP. P. 34.6(f). Accordingly, we overrule issue three.

DISPOSITION

Having overruled each of Appellant’s three issues, we affirm the trial court’s judgment.

GREG NEELEY
Justice

Opinion delivered March 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 31, 2023

NO. 12-22-00112-CR

DEATRIC JERMAINE ALEXANDER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 2nd District Court
of Cherokee County, Texas (Tr.Ct.No. 21021)

THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below for
observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.