No. 14-04-00221-CR
Opinion filed September 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 405th Judicial District, Galveston County, Texas, Trial Court Cause No. 03CR0225. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
J. HARVEY HUDSON, Justice.
Appellant, Naim Id-Deen Garner, appeals from his conviction for the felony offense of aggravated assault. See Tex. Pen. Code Ann. § 22.02 (Vernon 2003). Charged by indictment, appellant pled "not guilty" and entered pleas of "not true" to two felony enhancement paragraphs. After considering the evidence, the jury found appellant guilty. Thereafter, the trial court found the enhancement paragraphs to be true and assessed appellant's punishment at confinement in the penitentiary for a term of 50 years. In two points of error, appellant complains (1) the State violated his due process rights by failing to disclose favorable evidence as required by Brady v. Maryland, 373 U.S. 83 (1963) and (2) the State committed prosecutorial misconduct by leaving a false impression with the jury. We affirm. The record reflects that at approximately 1:45 a.m., on January 28, 2003, Evett Mondier returned home from her job as a topless dancer at an adult night club in Houston. When Mondier arrived at her apartment complex, she noticed appellant was watching her and walking towards her vehicle. Frightened, she used a cell phone to call her boyfriend, Jerome Keith Norris, who was inside their apartment. Norris came out and began walking towards Mondier's car. After a brief verbal exchange, appellant left. About an hour later, at approximately 2:45 a.m., appellant returned and knocked on Mondier's apartment door. Observing what appeared to be a gun in appellant's hand, Norris ordered Mondier to get her loaded .380 Bersa pistol. When Norris opened the door, appellant immediately shot him in the chest. Norris attempted to close the door but, after a lengthy struggle, appellant forced the door completely open. Norris then returned fire, hitting appellant in the chest. Appellant fired two more shots — striking Norris in the arm and shoulder — and then fled the scene in a white Ford Taurus. Mondier immediately called 9-1-1 for help. Shortly thereafter, emergency medical personnel arrived and took Norris to the U.T.M.B. trauma center. Houston Crime Scene detectives also arrived on the scene to investigate the incident. They collected evidence including the Bersa .380 handgun used by Norris and shell casings from rounds fired by both men. In addition, they discovered a loaded shotgun and cocaine inside Mondier's apartment. Subsequently, League City police officers observed two men in a white Ford Taurus near F.M. 518 and I-45. After the two men stopped in a nearby parking lot, Officers Leland and Addock approached the vehicle. Leland gained control of the driver but appellant exited the vehicle and took off on foot. Addock gave chase and quickly apprehended appellant after he collapsed, presumably from the gunshot wound to his chest. Inside the suspects' vehicle, officers recovered a Lorcin .380 handgun — later determined to have been used in the shoot-out with Norris — and a baseball bat — allegedly intended to be used on Mondier. Appellant was then arrested and transported by ambulance.
Appellant and an accomplice allegedly had been paid by a third party to beat Mondier so badly that she would no longer be able to dance. In pursuit of this objective, appellant and his accomplice stalked Mondier for several weeks to determine her daily schedule.
Disclosure of Brady Material
In his first point of error, appellant contends the State violated his due process rights by failing to disclose evidence favorable to his defense. Specifically, appellant argues the State refused to disclose the criminal history records of the State's key witnesses, Mondier and Norris. Both were convicted of felony offenses arising out the same incident in which appellant was charged. Appellant further alleges the State entered into some sort of agreement with the two witnesses in which they would receive favorable sentences in return for testifying against him. Thus, appellant contends that by refusing to disclose the witnesses' criminal records and the details of the alleged agreements, the State improperly withheld impeachment evidence that was crucial to his defense. The State counters by arguing appellant had full access to the criminal records because: (1) the records were a matter of public record that could have been obtained through diligent efforts; (2) the State maintained an open file policy with appellant's trial counsel; and (3) the State printed copies of the records for appellant, but counsel failed to pick them up. Furthermore, the State points out there is nothing in the record to support appellant's contention that the witnesses received special treatment from the State in exchange for their testimony. The Due Process Clause of the Fourteenth Amendment requires the State to disclose evidence that is favorable to a criminal defendant. Brady, 373 U.S. at 84-88; Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App. 1992). When the State fails to disclose this type of evidence, and the evidence is material either to guilt or to punishment, the State violates the defendant's due process rights irrespective of whether the State was acting in good faith or bad faith. Brady, 373 U.S. at 84-88; Thomas, 841 S.W.2d at 404. This rule requires disclosure of both exculpatory evidence and impeachment evidence. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Thomas, 841 S.W.2d at 404; Drew v. State, 76 S.W.3d 436, 447 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In order to establish a due process violation under Brady, a defendant must show: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the evidence was material to either guilt or punishment. Thomas, 841 S.W.2d at 404; Drew, 76 S.W.3d at 447. If all three factors are met, we must reverse the conviction. See McFarland v. State, 928 S.W.2d 482, 511 (Tex.Crim.App. 1996); Butler v. State, 736 S.W.2d 668, 670 (Tex.Crim.App. 1987). Suppression The first element of Brady is present if the prosecution actively suppresses evidence or negligently fails to disclose it. Butler, 736 S.W.2d at 670; Baker v. State, 887 S.W.2d 227, 228 (Tex.App.-Texarkana 1994, no pet.). While the State has an affirmative duty to disclose, it is "not required to facilitate the compilation of exculpatory material that could have been compiled by the defense." Taylor v. State, 93 S.W.3d 487, 499 (Tex.App.-Texarkana 2002, pet. ref'd). Thus, without suppression, there is no Brady violation. Id.; see also Staten v. State, 919 S.W.2d 493, 498 (Tex.App.-Fort Worth 1996, pet. ref'd) (explaining that no Brady violation exists unless it is shown that the defendant was actually denied access to the allegedly favorable material). Here, appellant's counsel conceded that the State "maintained an open file policy with [him]" throughout the proceedings below. Generally, if the State opens its files for examination by defense counsel, it fulfills its duty to disclose Brady evidence. Brewer v. State, 126 S.W.3d 295, 305 (Tex.App.-Beaumont 2004, pet. ref'd). Moreover, there is no evidence the State suppressed the alleged Brady material at issue. Regarding the criminal records, it is important to note that they were a matter of public record. While there is no "public records" exception to the Brady rule, if evidence is part of the public records and defense counsel should know of the evidence but fails to obtain the records because of a lack of diligence in his own investigation, there is no Brady violation. Dalbosco v. State, 978 S.W.2d 236, 238 (Tex.App.-Texarkana 1998, pet. ref'd) (citing United States v. Payne, 63 F.3d 1200 (2d Cir. 1995) and United States v. White, 970 F.2d 328 (7th Cir. 1992)); see also Keeter v. State, 105 S.W.3d 137, 147-48 (Tex.App.-Waco 2003), rev'd on other grounds, No. PD-1012-03, 2005 WL 766974, at * 1-4 (Tex.Crim.App. Apr. 6, 2005) ("[U]nder a variety of circumstances, courts have held that the duty fell to the defendant to discover the complained-of [ Brady] evidence."). Indeed, counsel admitted to the trial court that he was aware of the existence of the records but explained he had been unable to locate them. We do not construe counsel's failure or lack of diligence as any evidence that the State withheld evidence. See Taylor, 93 S.W.3d at 499; Staten, 919 S.W.2d at 498. There is no showing in this case to indicate the State intentionally, or even negligently, withheld the criminal records of Mondier and Norris. To the contrary, the record indicates the State made affirmative efforts to provide counsel with the requested evidence. On Friday, December 5, 2003 — three days before trial — appellant's counsel requested copies of the criminal records from the District Attorney's office. Over the weekend, prosecutors made copies and instructed counsel to pick them up before trial was to begin on Monday, December 8. However, counsel apparently failed to pick up the requested copies. Favorability Assuming arguendo that the State did unlawfully suppress the evidence in this case, appellant still must prove the remaining two elements under Brady. The second part of Brady has been satisfied because the evidence appellant complains of is favorable to his case. See generally Thomas, 841 S.W.2d at 404 (holding that favorable evidence includes both exculpatory and impeachment evidence); Taylor, 93 S.W.3d at 499 (same). Impeachment evidence is that which is offered "to dispute, disparage, deny, or contradict. . . ." Thomas, 841 S.W.2d at 404 (quoting Black's LAW DICTIONARY 566 (5th ed. 1990)). The evidence in this case involves impeachment of the State's two key witnesses — Mondier and Norris — and whether or not they were biased as the result of alleged agreements entered into with the State. Accordingly, the evidence is "favorable" to appellant. Materiality Turning to the third element, we are required to determine whether the evidence was material, i.e., it created a probability sufficient to undermine confidence in the outcome of the proceeding. See Thomas, 841 S.W.2d at 404. "Evidence is material under the third Brady factor when there is a `reasonable probability' that the outcome of the trial would have been different if the suppressed evidence had been disclosed to the defendant." Runyan, 290 F.3d at 245. To make this determination, we must examine the alleged error in the context of the entire record and considering the overall strength of the State's case. Thomas, 841 S.W.2d at 404-05. A verdict that is only weakly supported by the record is more likely to be affected by any Brady error than a verdict that is strongly supported. Strickland v. Washington, 466 U.S. 668, 696 (1984). Here, the State presented ample evidence at trial to strengthen its case against appellant for the alleged aggravated assault. Excluding Mondier and Norris, four other witnesses testified for the State. These included, Leland and Addock, the officers who arrested appellant on suspicion that he was the assailant. At trial, these officers explained that they found appellant with a bullet wound to his chest and in possession of a baseball bat. More significantly, the officers stated that appellant was in possession of a Lorcin .380 pistol. Linking this gun to the assault, the State presented testimony from Theresa Murphy, evidence identification manager for the League City Crime Scene Unit handling the case. Murphy's testimony indicated the Lorcin .380 found in appellant's possession was the gun used in the assault on Norris. Ballistics testing also showed the gun matched the shell casings retrieved at the scene. Thus, appellant was sufficiently linked to the crime regardless of the testimonies from Mondier and Norris. On the other hand, appellant's entire case consisted of nothing more than an attempt to impeach Mondier regarding the details of her crime and the effect of her plea. Nothing elicited by trial counsel refuted the State's evidence or otherwise indicated that appellant was not guilty of the offense. After reviewing the entire record and considering the strength of the State's case, we are convinced that the complained of evidence does not sufficiently "undermine confidence in the outcome of the trial." See Thomas, 841 S.W.2d at 404-05. Even if appellant had been given complete copies of the criminal records for Mondier and Norris, we do not believe it would have made a significant difference at trial. Neither do we believe that disclosure of the alleged special plea agreements — if, in fact, any such agreements existed — would have likely changed the outcome of the trial. Appellant's first point of error is overruled. Prosecutorial Misconduct
In his second point of error, appellant contends the State used misleading testimony to present a false picture to the jury regarding the plea agreements entered into between the State and its two key witnesses, Mondier and Norris. Appellant also contends the State's failure to correct the false impression and its refusal to tender requested Brady material were acts of prosecutorial misconduct which require reversal of his conviction. To preserve error in cases of prosecutorial misconduct, the defendant must: (1) make a timely and specific objection; (2) request an instruction that the jury disregard the matter improperly placed before the jury; and (3) move for a mistrial. TEX. R. APP. P. 33.1(a); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Here, appellant never objected during the testimony of which he now complains. Furthermore, nothing in the record indicates that he requested a jury instruction or moved for a mistrial while the State was allegedly misleading the jury. Only after the witnesses had been excused and the State had rested did appellant file a written motion for mistrial. Therefore, his complaint came far too late to properly preserve error. Morrison v. State, 132 S.W.3d 37, 48-49 (Tex.App.-Houston [14 Dist.] 2004, pet. ref'd) (holding that error was waived where "[n]othing in the record show[ed] that appellant objected or moved for a mistrial when the conduct in question occurred."); see also Reed v. State, 794 S.W.2d 806, 811 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd) (explaining that a jury instruction to disregard is a prerequisite for bringing such a complaint on appeal). Even if appellant had properly preserved error on this point, we find the trial court did not abuse its discretion in overruling his motion for mistrial. Mistrial is appropriate for only "highly prejudicial and incurable errors." Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) (quoting Wood v. State, 18 S.W.3d 642 (Tex.Crim.App. 2000)). We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Id. A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004); Montgomery v. State, 810 S.W. 2d 372, 391 (Tex.Crim.App. 1990). Here, the trial court held a hearing outside the presence of the jury on appellant's motion for mistrial. At this hearing, both appellant's counsel and the State's chief prosecutor testified. Counsel attempted to elicit testimony from the prosecutor that Mondier and Norris received extremely light sentences in exchange for their testimony against appellant. However, the prosecutor explained that neither witness received special deals for his or her testimony and that neither of their sentences were incredibly unique. He also explained that it was purely coincidence that both Mondier and Norris had the same defense attorney in their cases and that the prosecutor in their cases was serving as "second chair" in appellant's case. Apparently, the court agreed there was no connection and there were no secret, undisclosed deals and, thus, denied appellant's motion for a mistrial. Absent some indicia in the record to indicate the court abused it's discretion in doing so, we must affirm. See Simpson, 119 S.W.3d at 272. After reviewing the entire record, we find nothing to suggest the court's decision is beyond the zone of reasonable disagreement. Therefore, we find that the court did not abuse its discretion in denying appellant's motion for mistrial. Accordingly, we overrule appellant's second point of error. The judgment of the trial court is affirmed.