A former Baylor University football player convicted in January of sexually assaulting a former Baylor student said he deserves a new trial because prosecutors supplied a surveillance videotape with 30 minutes omitted that could have been important to the defense.
Judge Matt Johnson of Waco’s 54th State District Court has scheduled a hearing for April 4 to consider Tevin Elliott’s motion for new trial.
Elliott, 22, a former defensive end at Baylor, was sentenced to 20 years in prison and fined $10,000 on Jan. 23 after his conviction on two counts of sexually assaulting another student at a party at a Waco apartment complex in 2012.
Two other former Baylor students testified at his trial that he sexually assaulted them, too. There also was evidence that a fourth student reported he sexually assaulted her, but she did not testify.
In the motion for a new trial, Dallas attorney William A. Bratton III alleges that prosecutors violated evidentiary guidelines by giving the defense a videotape with a 30-minute gap in it between 1:08 a.m. and 1:38 a.m. on April 15, 2012.
The tape came from surveillance cameras at the Aspen Heights apartment complex, 3344 S. Third St., where a big crowd of Baylor students, including many on the football team, attended a party.
Prosecutors Hilary LaBorde and Robert Moody said at previous hearings that they did not alter the tape and that it came to their office like that. They have denied that they or Waco police altered the tape in any way and said they have no explanation for the 30-minute gap.
Elliott, who came to Baylor in 2009 from Mount Pleasant, denied he sexually assaulted any of the women and said his relationship with them was consensual.
The student testified she was dancing with Elliott at the party when he grabbed her by the arm and took her outside.
She testified he sexually assaulted her near a pool and again near a sandy volleyball court.
Bratton alleges in the motion that the omitted videotape footage could have shown them entering the pool area.
“The evidence could be exculpatory, impeaching or mitigating,” the motion states. “As such, the omission constitutes a clear violation of the duties of the prosecution.”
The motion also charges that Elliott’s trial attorney, Jason P. Darling, provided ineffective assistance of counsel by failing to call a number of witnesses on a list that Elliott provided who also were at the party.
Darling, who called several party guests as defense witnesses, declined comment Thursday on the motion for new trial.