No. 01-09-01012-CR
Opinion issued December 2, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 56th District Court, Galveston County, Texas, Trial Court Case No. 08CR2227.
Panel consists of Justices KEYES, HIGLEY, and BLAND.
JANE BLAND, Justice.
A jury convicted Wayne Delwin Gill of felony murder and sentenced him to life imprisonment after the jury found two enhancement paragraphs to be true. See TEX. PENAL CODE ANN § 19.02 (Vernon 2003). On appeal, Gill contends that the trial court abused its discretion by denying his motion for new trial based upon exculpatory information, namely cell phone records that he contends the State withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). We hold that the trial court did not abuse its discretion in denying Gill's motion for new trial. We therefore affirm.
Background
Facts Regarding the Offense
On a Saturday in July 2008, Karim Gamil Sirgy Ubaldo, the complainant, met Gill and Christopher McKnight at a motel room to buy methamphetamine from them. According to Gill's statement to the police, once Ubaldo was seated in the room, McKnight held him by the neck and struck him in the nose with his gun, while Gill grabbed Ubaldo's gun from his pants and restrained him with duct tape. Gill and McKnight took Ubaldo's gun, money, wallet, and watch. During the night, McKnight made several trips to his cousin's house in Ubaldo's Jeep Cherokee to purchase heroin and to strip the vehicle of its speakers, stereo and other electronics. According to Gill, Ubaldo shot himself up with the heroin McKnight purchased and was still alive when he left the motel room that night. Gill returned to the motel on Sunday morning. He claims McKnight, Ubaldo, and he then drove around in Gill's car, looking for more drugs. Eventually during the morning, they went to McKnight's cousin's house to retrieve Ubaldo's Jeep, which had been parked there overnight. Gill and McKnight transferred Ubaldo from Gill's car to Ubaldo's Jeep, along with bloody sheets and blankets from the motel. In his statement, Gill maintained that Ubaldo appeared to be alive at this point, but was not moving. McKnight left in the Jeep with Ubaldo in the back of the vehicle. Gill did not go with them. On Sunday evening, Gill met McKnight in another motel room, where they did drugs into the earlier morning hours of the next day. During this time, Gill asked McKnight what happened to Ubaldo, and McKnight responded that he had taken care of it. According to his statement, Gill figured McKnight "disposed of it." McKnight later asked Gill if he would follow him to Galveston to get rid of Ubaldo's Jeep. Gill stated to the police that he assumed that Ubaldo was dead in the Jeep. He did not follow McKnight. Around dawn, Bayou Vista Police Officer M. Bergen arrested McKnight for public intoxication. Bayou Vista Police Officer R. Shannon conducted an inventory search of Ubaldo's Jeep which the police suspected McKnight had driven. Officer Shannon discovered Ubaldo's dead body in the back of the Jeep. Doctor S. Pustilnik, Chief Medical Examiner for Galveston County, conducted the autopsy on Ubaldo. He testified that Ubaldo had a broken nose, a laceration associated with the broken nose, abrasions on the left side of his scalp, face and arm, and three puncture marks on his arm. He had five total areas of trauma to his scalp and one to his face. Gray semi-sticky tape residue was on his arms and the right side of his head below his ear. Dr. Pustilnik testified that the downward angle of the tape on his head was consistent with tape across Ubaldo's mouth. Three puncture wounds were on Ubaldo's right arm, but no track marks indicative of chronic intravenous drug use were present. According to the toxicology lab report, Ubaldo had a lethal amount of morphine. Methamphetamine was also in his system. Dr. Pustilnik concluded that Ubaldo's cause of death was a combination of blunt force trauma, asphyxia and multiple drug intoxications. He estimated that Ubaldo had been dead for some time — between eight and forty hours — when he conducted the autopsy several hours after the police discovered Ubaldo's body. Sergeant E. Cazares recovered fingerprints from Ubaldo's Jeep Cherokee. A latent impression recovered from the front passenger's door window matched Gill's left thumb print. He also took swabs from the Jeep for DNA testing. The DNA profile from the swabs from the Jeep's steering wheel and passenger's side seat belt could not exclude Gill as a contributor. Facts Regarding the Alleged Brady Violation
During trial, defense counsel asked Sergeant Echols whether he had requested records from the cell phone carriers for Ubaldo's cell phone and for several other individuals. Sergeant Echols responded that he had received the records for those cell phones. He submitted the records to the Identification Division at the Sheriff's Department as evidence. Defense counsel asked if the records were a valuable resource to determine what happened in this case. Sergeant Echols responded that he did not think the information was valuable. Defense counsel next questioned Sergeant M. Barry of the Galveston County Sheriff's Office about the cell phone records. He asked Sergeant Barry whether he was aware Sergeant Echols had subpoenaed the records. Sergeant Barry responded that he was aware that Echols had tried to obtain the records, but that he never viewed them. Defense counsel never asked for a continuance to review the phone records during trial. Instead, in his closing argument, he stated: There's a possibility that we could have verified all this from the cell phone records. You heard from Sergeant Echols: Yes, I subpoenaed some cell phone records. We recovered some cell phones. We recovered some cell phones that belonged to the decedent and some other individuals. Had those in the records. Didn't show them to anybody. We just kind of held on to them. Wonder why? Could have been beneficial to all of you let you know exactly what was going on. . . . No. That wasn't important. They had their minds made up.
Later during closing argument, defense counsel said, "[Ubaldo is] free to move around. His cell phone is still working. He has the ability to call for help. Send a text message to someone if something is going on. Records which we [have] never seen. But did he? We don't know." Finally in his closing argument, defense counsel argued that the phone records might have shown that Ubaldo was not murdered. After a jury convicted Gill and sentenced him, his counsel moved for a new trial based on the argument that the State never "directly" gave Gill the cell phone records. At a hearing on the motion, the lead prosecutor in the case testified that she knew about the cell phone records. She had reviewed the records, as they were in the State's file when she began work on the case. When defense counsel asked her if she had turned the records over to him, she stated that she assumed that defense counsel had seen the phone records because the State's file contained a copy. She added that the offense report indicated that the police had obtained phone records. She and defense counsel had a meeting at the Sheriff's Office several weeks before trial, at which time they went over all the evidence in the case. She admitted that she did not personally copy the records and give them to defense counsel. She testified that she did not think that the phone records contained any exculpatory evidence. Brady Violation
On appeal, Gill contends that the trial court abused its discretion by denying his motion for new trial based upon exculpatory information withheld by the State. He maintains the State withheld the cell phone records in violation of his constitutional rights. See Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97. 1. Standard of Review An appellate court reviews a trial court's ruling on a motion for mistrial and motion for new trial using an abuse-of-discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). In Brady, the United States Supreme Court held that the suppression of evidence favorable to a defendant violates his due process rights if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). To establish a Brady violation, a defendant must show: (1) the state suppressed evidence; (2) the suppressed evidence is favorable to defendant; and (3) the suppressed evidence is material. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999); Thomas v. State, 841 S.W.2d 399, 402-03 (Tex. Crim. App. 1992) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568 (1972)). Materiality, incorporated into the third prong, is a requirement that a defendant must be prejudiced by the state's failure to disclose the favorable evidence. Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 1272 (2004). The Supreme Court subsequently extended Brady to include a duty to disclose evidence even if the defendant has not requested it, and to include both impeachment and exculpatory evidence. United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976); United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). This duty requires disclosure of favorable evidence known only to the police; consequently, prosecutors have a duty to learn of Brady evidence known to others acting on the state's behalf in a particular case. Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1568 (1995). It is irrelevant whether suppression of the favorable evidence was done willfully or inadvertently. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999). 2) Brady Factors a. Suppression of Evidence by the State
The trial court reasonably could have concluded that the prosecutor in this case did not suppress the cell phone records. If the State opens its files for examination by defense counsel, it generally fulfills its duty to disclose exculpatory evidence. Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006). A prosecutor's open-file policy is insufficient, however, if the exculpatory information is not in the prosecutor's file. Harm, 183 S.W.3d at 407. In this case, the lead prosecutor testified at the hearing on the motion for new trial that the cell phone records were in the State's file when she took over the case. Further, she indicated that she opened the State's file for defense counsel's review. She testified that she and defense counsel had a meeting at the Sheriff's Office several weeks before trial at which time they went over all the evidence in the case. Also, she said she assumed defense counsel examined the phone records because they were available for review in the State's file. Although defense counsel claims he never reviewed the records, he could have reviewed the records in the State's open file before the trial. See Givens v. State, 749 S.W.2d 954, 957 (Tex. App.-Fort Worth 1988, pet. ref'd) (finding no Brady violation where prosecutor made State's file available to defense counsel and counsel could have reviewed State's file before trial and discovered complained-of evidence). The trial court reasonably could have concluded that the prosecutor fulfilled her duty to disclose the cell phone records because of the State's open file policy and the fact that the records were made available to defense counsel with the rest of the state's file. See Harm, 183 S.W.3d at 407. b) Favorability of the Evidence to Gill
There was no evidence that the cell phone records were exculpatory. Gill contends on appeal that they would have shown that Ubaldo was alive when Gill last saw him and died of a self-inflicted drug overdose or solely at the hands of McKnight. At trial, he did not, however, request a continuance to review the cell phone records. Once the cell phone records were disclosed at trial, had he not had an opportunity to review them, Gill should have requested a continuance. See Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.-Houston [1st Dist.] 2003) ("When evidence withheld in violation of Brady is disclosed at trial, the defendant's failure to request a continuance waives the error or at least indicates that the delay in receiving the evidence was not truly prejudicial") aff'd, 155 S.W.3d 184 (Tex. Crim. App. 2005). He did not do so. c) Materiality of the Evidence
The trial court also reasonably could have concluded that the cell phone records were not material. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002) (quoting Agurs, 427 U.S. at 109-10, 96 S. Ct. at 2400). Rather, the inquiry is whether the State's failure to disclose the evidence undermines the confidence in the jury's verdict. See Lempar v. State, 191 S.W.3d 230, 241 (Tex. App.-San Antonio 2005, pet ref'd) (citing Ex parte Richardson, 70 S.W.3d 865, 870 n. 22 (Tex. Crim. App. 2002)); see also Thomas, 841 S.W.2d at 404 (Tex. Crim. App. 1992) (quoting Bagley, 473 U.S. at 682, 105 S. Ct. at 3383) ("The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding, would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome."). In this case, Gill contends that the cell phone records are material because they would show that Ubaldo was alive and using his phone after Gill last saw him on Sunday morning. Thus, the records would support his defensive theory that McKnight killed Ubaldo alone without Gill's assistance sometime after Gill concluded his involvement. Even had this argument been timely made, the cell phone records would have been cumulative of other evidence at trial. Two witnesses, Lacey Runnels and Christine Crutcher, testified that Ubaldo contacted them with his cell phone in the afternoon hours of Sunday and the early morning hours of Monday, after Gill contends he last saw Ubaldo. Runnels, Ubaldo's friend, testified that she received a text message from Ubaldo's phone Sunday afternoon, stating, "Sorry. Had to go back to California to help out some family." Christine Crutcher, Ubaldo's girlfriend, testified that she called him on his cell phone around three or four in the morning on Monday, the day police discovered Ubaldo's body, and spoke with him. Because these witnesses testified, independent of the cell phone records, that Ubaldo used his cell phone after Gill last saw him on Sunday morning, the trial court reasonably could have concluded that no reasonable probability existed that, had the cell phone records been disclosed to Gill, the result of the proceeding would have been different. Conclusion
We hold that the trial court did not abuse its discretion in denying Gill's motion for new trial because Gill failed to meet his burden to show that a Brady violation occurred. We therefore affirm the judgment of the trial court.