Opinion
NUMBER 13-15-00527-CR
08-17-2017
JOE HENRY GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Joe Henry Garcia appeals his conviction for driving while intoxicated (DWI), third offense or more, a third-degree felony. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West, Westlaw through Ch. 49, 2017 R.S.). A jury found appellant guilty, and the trial court assessed punishment at ten years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. By one issue, appellant complains of the State's failure "to provide appellant's trial counsel with full discovery." We affirm.
I. BACKGROUND
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
During the guilt-innocence phase of trial, the trial court admitted into evidence, without objection, a dash-cam video of the traffic stop which lead to appellant's arrest for DWI. The video was then published to the jury. On the video, the arresting officer asks appellant, "So, you've only had one DWI?" To which appellant responds, "Actually, I've had four sir." After this portion of the video was played, appellant's counsel asked to approach the bench and the following exchange took place:
TRIAL COURT: State's Exhibit 3 was being played, and there was a portion of the argue—audio whereby the defendant was talking to the deputy, and I believe the deputy asked him if he had ever— if he had any prior DWIs. And the defendant said, I've had four. And, [appellant's counsel], at that time you said you needed to approach.
APPELLANT'S COUNSEL: My copy does not have audio at this point. It has it in the very beginning when—when the dispatcher is talking back and forth, but I don't have any audio here. I've watched that video six, seven times. Never heard that statement. Come—I mean, I'm not objecting to the copy that I've got. What the jury just heard is—is grounds for a mistrial. I mean, the jury cannot be told of prior—prior crimes, prior convictions. And, in fact, that portion of the video now has the jury hearing about four prior DWIs.
TRIAL COURT: What's your response to that?
PROSECUTOR: The State's response will be that it's relevant because we do have to prove that the defendant at least has two prior DWIs. Obviously they're not referenced by cause number; but it does go to the fact that he has been convicted at least twice prior of DWI, which we're also going to prove up by a judgment and sentence. But it just corroborates that he has been prior convicted twice or more of DWI.
TRIAL COURT: Okay. But what about his objection that—he said that his copy doesn't have his client saying that he's been convicted of four other DWIs?
PROSECUTOR: That's the first the State hears of it, Your Honor; and we would like to review his copy to see if that's the case or not. We were under the impression that he had a working copy. . . .
. . . .
APPELLANT'S COUNSEL: And he said that the only time that he has audio is—is later on in the car. I didn't know about that. I have no audio except for the dispatcher, and then that's it.
PROSECUTOR: Well, I mean, the copy he—he received was burned straight off of the Z drive. I can tell the Court that much. The copy on the Z drive is the copy that we're playing for the jury. . . .
. . . .
APPELLANT'S COUNSEL: Your Honor, it's highly prejudicial. This—this jury cannot return a fair verdict.
TRIAL COURT: Are you going to stipulate to his—did you stipulate to his prior DWI?
APPELLANT'S COUNSEL: No.
TRIAL COURT: All right. Then your objection is overruled.
The trial court then instructed the State to give appellant's counsel an opportunity to review the dash-cam video before the State published the remaining footage to the jury. The following day, appellant's counsel renewed his objection to the video, stating "It's highly prejudicial." The trial court again overruled the objection. The State later introduced, without objection, the judgment and sentence from two of appellant's prior DWI convictions. The jury returned a guilty verdict. This appeal followed.
II. DISCUSSION
By his sole issue, appellant argues, "The State failed to provide appellant's trial counsel with full discovery under Texas Code of Criminal Procedure article 39.14." See TEX. CODE CRIM. PROC. ANN. art. 39.14 (West, Westlaw through Ch. 49, 2017 R.S.). Appellant maintains that due to the State's failure, appellant was "prevented . . . from guarding against disclosure of [the incriminatory remarks] from appellant's fact finder."
We note that the dash-cam video was admitted and published to the jury without objection. The trial court was never given the opportunity to address the admissibility of the video or consider whether it should be excluded. Accordingly, "[t]he only adverse ruling—and thus the only occasion for making a mistake—was the trial court's denial of the motion for mistrial." Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011) (quoting Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004)). Therefore, the proper issue before this court is whether the trial court's refusal to grant a mistrial was an abuse of discretion. See id. at 739-40.
A. Standard of Review and Applicable Law
A mistrial is a device used to halt trial proceedings where error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Smith v. State, 491 S.W.3d 864, 872 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). We review the denial of a motion for mistrial for an abuse of discretion. Archie, 221 S.W.3d at 699. We must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77. We determine whether a given error necessitates a mistrial by examining the particular facts of the case. Ladd, 3 S.W.3d at 567.
Appellant alleges that the State violated its discovery obligations under article 39.14 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 39.14. Criminal defendants are entitled to limited discovery under article 39.14 of the Texas Code of Criminal Procedure in addition to, and independent of, the constitutional right of access to exculpatory evidence provided within Brady v. Maryland. Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). While Texas law previously required the defendant to show good cause for the discovery of evidence from the State, the passage of the Michael Morton Act in 2014 amended article 39.14(a) to now require that the State, upon request of the defendant, produce evidence that "constitute[s] or contain[s] evidence material to any matter involved in the action and that [is] in the possession, custody, or control of the state or any person under contract with the state." TEX. CODE CRIM. PROC. ANN. art. 39.14(a).
Appellant does not argue a Brady violation on appeal. In Brady v. Maryland, the 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." 373 U.S. 83, 87 (1963). The Supreme Court has since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, see United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). "Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault, and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence." Ex Parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (citing Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006)). Because appellant's admission to prior DWI convictions is neither exculpatory nor impeachment evidence, the requirements imposed by Brady do not apply. Compare Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011) (holding that the State violated the defendant's constitutional rights as expressed in Brady when it failed to disclose audio portion of video tape containing evidence favorable to the defendant) with Harm, 183 S.W.3d at 406 (explaining that information that is not favorable to the defendant is not covered by Brady). Accordingly, our review is limited to the State's obligations under article 39.14 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 39.14 (West, Westlaw through Ch. 49, 2017 R.S.).
B. The State's Disclosure Obligations
Article 39.14 disclosure requirements are triggered only after the State receives a timely request from the defendant. Glover v. State, 496 S.W.3d 812, 815 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). Absent a discovery request, the State's affirmative duty to disclose evidence extends only to exculpatory information. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h) ("Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment or mitigating document, item or information . . . that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged). Nothing in the record indicates that appellant ever made such a request; therefore, we cannot conclude that the State violated article 39.14. See Glover, 496 S.W.3d at 815 ("By its express language, the Act requires a defendant to invoke his right to discovery by request to avail himself of the Act's benefits.").
Furthermore, appellant's complaint relates to the disclosure of information already known to appellant—his own statement to law enforcement. The State has no affirmative duty to disclose information already known to a defendant. See Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002) (explaining that State had no duty to disclose existence of letter written by the defendant); Havard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App. 1989) (concluding that State had no duty to disclose existence of the defendant's own statement to law enforcement contained in an offense report). Accordingly, the trial court did not abuse its discretion in denying a mistrial pursuant to article 39.14. See Archie, 221 S.W.3d at 699
We also note that there was no discovery order in this case. Had there been, the dash-cam video would have been subject to exclusion only if the pertinent audio was willfully withheld by the State. See Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). Exclusion of evidence is a court-fashioned sanction for prosecutorial misconduct; therefore, whether the trial court should exclude evidence hinges on whether the prosecutor acted with the specific intent to willfully disobey the discovery order. Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014). Extreme negligence or even recklessness to comply with a discovery order will not, standing alone, justify the sanction of the exclusion of relevant evidence. Id. We infer from the prosecutor's actions and words whether the prosecutor had the specific intent to willfully disobey the discovery order. See Oprean, 201 S.W.3d. at 728.
In this case, the prosecutor informed the trial court that the copy of the dash-cam video provided in discovery was created in the same manner as the version admitted at trial. The State believed that it had provided appellant with an identical copy of the trial exhibit and suggested that the two versions be compared to confirm the alleged discrepancy. While appellant's counsel claimed that the audio containing appellant's admissions was omitted from the video, appellant never presented his copy to the trial court for examination. The trial court's presumed finding that the State did not willfully withhold evidence is supported by the record. See Francis, 428 S.W.3d at 855 (explaining that on review of a trial court's ruling on a motion to exclude evidence, an appellate court must presume that the trial court made findings consistent with its ruling when supported by the record). Based on the State's representations, the trial court could have found that appellant was mistaken regarding the alleged discrepancy in the videos or that the State did not willfully omit a portion of audio from the video. Under either scenario, appellant would not have been entitled to exclusion of the evidence.
C. Evidence was Admissible Absent Discovery Violation
In addition to maintaining that the video was not fully disclosed through discovery, appellant also argued to the trial court that "the jury cannot be told of . . . prior crimes, prior convictions." To the extent appellant requested a mistrial on this basis, the trial court did not abuse its discretion in denying the motion.
DWI is a third-degree felony offense "if it is shown on the trial of the offense" that the person has two prior DWI convictions. TEX. PENAL CODE ANN. § 49.09(b)(2). As jurisdictional elements of the offense, the State must prove such prior convictions beyond a reasonable doubt as part of its case-in-chief during the guilt-innocence stage of trial. See Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). However, "a defendant is entitled to stipulate to the two jurisdictional prior DWI convictions in a felony DWI trial and thereby prevent the State from offering otherwise admissible evidence of those convictions." Martin v. State, 200 S.W.3d 635, 638 (Tex. Crim. App. 2006) (citing Tamez v. State, 11 S.W.3d 198, 202-03 (Tex. Crim. App. 2000)). Appellant did not stipulate to the prior convictions. Accordingly, the State was not prohibited from proving the convictions by other means, including a defendant's admission. See Flowers v. State, 220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007) (explaining that the State may establish a prior conviction through a defendant's admission); Martin, 200 S.W.3d at 638. Finally, any prejudicial effect was attenuated by the later introduction of the judgment and sentence from two of appellant's prior DWI convictions. See Banks v. State, 643 S.W.2d 129, 133 (Tex. Crim. App. 1982) (holding that "opening remarks about evidence which was thereafter properly admitted did not constitute error"); Mack v. State, 928 S.W.2d 219, 225 (Tex. App.—Austin 1996, pet. ref'd) (error is not reversible "if other evidence at trial is admitted without objection and it proves the same fact or facts that the inadmissible evidence sought to prove"); see also Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002) (error in admission of evidence is harmless if cumulative of evidence properly admitted elsewhere).
D. Summary
Absent a violation of article 39.14 or willful misconduct by the State, the trial court did not abuse its discretion in denying a motion for mistrial relating to the introduction of otherwise admissible evidence. We overrule appellant's sole issue.
III. CONCLUSION
We affirm the trial court's judgment.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 17th day of August, 2017.