Summary
concluding Brady complaint not preserved where not raised in motion for new trial or at hearing on that motion
Summary of this case from Brooks v. StateOpinion
No. 05-09-01313-CR
08-10-2012
STANLEY VERNELL LEDBETTER, JR., Appellant v. THE STATE OF TEXAS, Appellee
MODIFIED in part; AFFIRMED AS MODIFIED;
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F08-73084-V
OPINION
Before Justices Moseley, Richter, and Lang-Miers Opinion By Justice Moseley
A jury convicted Stanley Vernell Ledbetter, Jr. of aggravated sexual assault and assessed punishment at life imprisonment and a $10,000 fine. The judgment includes a deadly weapon finding (a firearm). In his first eight issues, appellant: (1) challenges the sufficiency of the evidence supporting the deadly weapon finding; (2) contends that the admission of certain evidence during the punishment phase violated his constitutional right to confrontation; (3) argues he received ineffective assistance of counsel; and (4) the State's failure to disclose certain allegations concerning the county forensics laboratory violated his due process rights pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). We resolve these issues against him. In a ninth issue, appellant requests us to modify the judgment to correct the names of the prosecuting and defending attorneys. We resolve appellant's ninth issue in his favor, modify the judgment to reflect the correct names of the trial attorneys, and affirm the judgment as modified.
I. BACKGROUND
We focus our recitation of the facts on those necessary to the disposition of the issues on appeal. At about 3:20 a.m. on May 15, 2006, the complainant, Tammy May Watkins, 1 woke up to see a man, later identified as appellant, in her apartment bedroom. He did not turn on a light. It looked to Watkins like he was pointing something directly at her, which she assumed was a gun. He told her to lie on her stomach with her hands out; he told her he had a gun and a knife. While he said that, she felt a gun at the back of her neck; she said "[i]t was hard but sort of sharp, too . . . ." He asked her if she valued her life or her money more, and when she said her life, he said, "Good." Then, he asked her where he purse was. When she told him it was downstairs, he told her to get up slowly and that he had a weapon. She felt "something strong and sharp" in her back on the side as she walked downstairs in the dark, with appellant behind her. Appellant used a flashlight to look through her purse; he obtained her ATM card and directed her to her car. He sat behind Watkins. Before he moved the rearview mirror, she saw that his face was covered by a bandana, and he was wearing a black hat. She obtained $1,000 from an ATM. He was angry that a receipt showed more money in her account, but she could not obtain additional cash from another ATM. He threatened to kill her if she "attracted the cops" while they were driving.
They returned to her apartment, where appellant forced her to perform oral and vaginal sex. He told her to get in the bathtub while he rummaged through her apartment. Eventually, he left. Later in the morning, Watkins was examined by a doctor, and vaginal samples were taken. A rape kit was prepared and sent to the county forensics laboratory, the Southwestern Institute of Forensic Sciences (SWIFS). A DNA profile of an unknown male was obtained from Watkins's vaginal sample. In 2008, that profile was matched with appellant's DNA profile.
The jury found appellant guilty as charged. (We note the judgment includes an affirmative finding that appellant used a deadly weapon-a firearm). In the punishment phase, the State presented evidence, including DNA evidence and testimony linking appellant to the assaults of seven other women (two of whom were J.L. and S.B., discussed in more detail below) in 2005 and 2006.
On the last day of the punishment hearing, October 21, 2009, a local newspaper published an article reporting criticism of certain conditions and procedures at SWIFS by Chris Nulf, Ph.D., a former SWIFS employee. Nulf worked at SWIFS from March 2008 to May 2009. Appellant's counsel discussed this development but decided they did not have time to pursue it.
In his amended motion for new trial, appellant referred to the newspaper article, which was attached to the motion, and alleged he received ineffective assistance of counsel. Pertinent to this appeal, appellant's amended motion argued that counsel "had a duty to, at a minimum, offer the evidence in a bill of exception" to include it in the record and this evidence "may well have mitigated against the maximum sentence that the jury imposed on Defendant."
At the hearing on the amended motion for new trial, appellant's additional ground seeking a new trial "in the interest of justice" was tried by consent. 2 At the conclusion of the hearing on the amended motion for new trial, the trial court orally denied both grounds of ineffective assistance of counsel and "in the interest of justice." This appeal followed. II. SUFFICIENCY OF THE EVIDENCE AS TO DEADLY WEAPON
In his first and second issues respectively, appellant contends the evidence is legally and factually 3 insufficient to support the deadly weapon finding.
A. Standard of Review
We apply the appropriate legal sufficiency standard of review. See Jackson, 443 U.S. at 319; Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 1763 (2012). In a legal sufficiency review, "we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Adames, 353 S.W.3d at 860. This standard "recognizes the trier of fact's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence." Id. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
B.Applicable La
As relevant here and in addition to other elements, a person commits aggravated sexual assault when a person "uses or exhibits a deadly weapon in the course of the same criminal episode." Tex. Penal Code Ann. § 22.021(a)(2)(A)(iv) (West 2012). 4 The victim testified appellant said to her: "Don't move, don't say anything, I have a gun, I have a knife." A firearm is a deadly weapon. Id. § 1.07(a)(17). "Used a deadly weapon during the commission of the offense" means "the deadly weapon was employed or utilized in order to achieve its purpose" and "extends as well to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony." Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989) (en banc). Use of a deadly weapon may be proved by circumstantial evidence. See Moore v. State, 531 S.W.2d 140, 142 (Tex. Crim. App. 1976); see Trahan v. State, 682 S.W.2d 597, 598 (Tex. App.-Beaumont 1984, pet. ref'd, untimely filed) (indirect or circumstantial evidence is "proof of collateral facts and circumstances from which it may be concluded that the principal facts in issue existed"; citation omitted).
C.Discussio
Watkins testified when she first saw appellant it looked like he was "pointing something [directly] at" her that she assumed was a gun. He told her he had a gun and a knife. She felt a gun on her neck and then something "hard" and "sharp" in her side. During the robbery of the ATM and the oral sexual assault, he threatened to kill her. An investigating police officer testified Watkins made a written statement that "it looked like he held a gun at me." We conclude this is some evidence that appellant used a firearm, a deadly weapon, to facilitate the commission of sexual assault. See Arceneaux v. State, 177 S.W.3d 928, 931-32 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (circumstantial evidence of use of gun during robbery included defendant's statement he had a gun, conduct consistent with having a gun, and using threat to force victim to surrender wallet); see also Tex. Penal Code Ann. § 1.07(a)(17); Patterson, 769 S.W.2d at 941; Moore , 531 S.W.2d at 142; Trahan, 682 S.W.2d at 598.
We reject appellant's arguments that Watkins's failure to see and describe the firearm and the "sharp" object she felt may have been a flashlight renders this evidence insufficient. The statute requires "use" or "exhibit." See Tex. Penal Code Ann. § 22.021(a)(2)(A)(iv). The jury resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences. See Jackson, 443 U.S. at 319; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Concluding the evidence is legally sufficient to support the deadly weapon finding, we resolve appellant's first and second issues against him. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 895.
III. CONSTITUTIONAL RIGHT TO CONFRONTATION
In his fourth and fifth issues, appellant challenges the admission of certain evidence concerning extraneous offenses during the punishment phase, arguing such evidence was admitted in violation of his constitutional right to confrontation. Specifically, he challenges the admission of a sexual assault examination report from J.L. (fourth issue) and a DNA report from evidence-lifting tape applied to the backseat of S.B.'s car (fifth issue) and "the testimony about their contents."
A. Applicable Law and Standard of Review
The Confrontation Clause of the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 59 (2004), the Court held that the Confrontation Clause of the Sixth Amendment bars the admission of testimonial statements of a witness who does not appear at trial unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him. After appellant objected to the exhibits on confrontation grounds, the State had the burden of establishing the evidence was admissible. Cuadros-Fernandez v. State, 316 S.W.3d 645, 656 (Tex. App.-Dallas 2009, no pet.).
"Generally speaking, a hearsay statement is 'testimonial' when the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. (quoting De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)). Whether a statement is testimonial is a question of law. Id. A forensic analyst is a witness for purposes of the Sixth Amendment. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009); see Cuadros-Fernandez, 316 S.W.3d at 657. Absent a showing that the analyst was unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the analyst, the defendant has a right to confront the analyst at trial. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710 (2011); Melendez-Diaz, 557 U.S. at 310-11; see Cuadros- Fernandez, 316 S.W.3d at 656.
Crawford error is constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(a), which provides that "the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment." Woodall v. State, 336 S.W.3d 634, 639 n.6 (Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)). We consider: (1) the importance of the hearsay statements to the State's case; (2) whether the hearsay evidence was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) the overall strength of the prosecution's case. See Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006). "Of course courts may consider other factors as well, but, in the final analysis, the reviewing court must be convinced, beyond a reasonable doubt, that the admission of Crawford-barred testimony would probably not have had a significant impact on the mind of an average juror." Id. "Put another way, is there a reasonable possibility that the Crawford error, within the context of the entire trial, 'moved the jury from a state of non-persuasion to one of persuasion' on a particular issue?" Id. at 852-53 (citation omitted).
B.Sexual Assault Examination Report
Before J.L.'s sexual assault examination report was admitted as State's Exhibit No. 51, J.L. testified that appellant forced her at gunpoint to perform oral sex on him during a robbery in June 2005. J.L. testified that the doctor who performed a medical examination at Parkland Hospital cut off some of her hair "and put it in an envelope and two weeks later it came with his DNA on it." J.L.'s testimony was admitted without objection.
During the testimony of Gary Ackerman, M.D., who was in charge of the Sexual Assault Examination Program, the State offered State's Exhibit No. 51, J.L.'s five-page sexual assault examination report that had been prepared by a physician other than Ackerman. Appellant objected to the admission of State's Exhibit No. 51 "under Melendez-Diaz and on the confrontation clause of the United States Constitution." At a hearing outside the presence of the jury, appellant argued that the report included the authorization that it be sent to the police department and was therefore "testimonial." The State argued the report was prepared for purposes of medical treatment. The trial court overruled the objection, and the exhibit was admitted.
"Step 1" of J.L.'s medical report includes "Law Enforcement Information" noting the police officer with the patient and the officer's identifying information. "Step 2" is "AUTHORIZATION FOR COLLECTION OF EVIDENCE AND RELEASE OF INFORMATION." "Step 7" is "debris collection" and indicates "clipped hair with semen." The remainder of the report concerns examination and collection of evidence concerning the sexual assault of J.L.
Ackerman subsequently read from the report, specifically quoting "step 7, page 2" where the physician had written "clipped hair with semen." Ackerman then testified that the items collected in the course of the examination would have been "collected . . . and packaged according to protocol." Appellant's objections on grounds of opinion, speculation, and bolstering were overruled. State's Exhibit 50, the container for sexual assault collection, was also admitted, and Ackerman said it had been "properly sealed." He said the "clipped hair" could have been in the kit or submitted separately. Subsequently, State's Exhibit No. 57 was admitted without objection; it showed the DNA profile from J.L.'s "cut hair." State's Exhibit No. 59 compares the DNA profiles of appellant with the DNA retrieved from J.L.'s hair, among other sources. State's Exhibit No. 60, also admitted without objection, is a "Supplemental Report" stating the results of DNA testing of J.L.'s "cut hair" and the buccal swab from appellant and that appellant was included within the possible source of the DNA from J.L.'s hair with the most conservative statistical weight of 1 in 14.4 quadrillion.
Assuming without deciding that State's Exhibit No. 51 is testimonial and the trial court erred in admitting it and Ackerman's testimony as to its contents, we consider whether this error in admitting an out-of-court statement in violation of Crawford was harmless beyond a reasonable doubt. In light of the record set out above, we conclude J.L.'s sexual assault examination report was important to the State's case to show forensics procedures, it was cumulative of and corroborated by J.L.'s testimony and the DNA tests, and the State's case on punishment was strong. Therefore, considering the entire context of the punishment phase of the trial, we cannot conclude there was a reasonable probability that any Crawford error in admitting State's Exhibit No. 51 moved the jury from a state of non-persuasion to one of persuasion on the punishment issue. See Davis, 203 S.W.3d at 852-53. Rather, we conclude beyond a reasonable doubt that such error was harmless. See Tex. R. App. P. 44.2(a); Woodall, 336 S.W.3d at 639 n.6. We resolve appellant's fourth issue against him.
C.DNA Repor
S.B. testified that, in the early morning hours of June 1, 2005, a masked man forced her at gunpoint to drive to an ATM; he sat in the backseat of her car. A forensics investigator testified that "trace evidence" may be fibers, hair, or skin and that he performed a "trace evidence lift" from three places on the backseat of S.B.'s car. Subsequently, Amber Moss testified that she had been a forensic scientist at Orchid Cellmark, a private forensic DNA testing laboratory, where a DNA profile was obtained from one of these trace evidence lifts. The State moved to admit the DNA profile as State's Exhibit No. 56.
On appellant's voir dire examination, Moss testified that Dedra Ward was the analyst who did the "actual testing" of the evidence and that she (Moss) was the "technical reviewer" and that "[a]s part of the technical review, [she] reviewed everything that was done in the case file." Appellant objected on state and federal Confrontation Clause grounds to the admission of State's Exhibit No. 56. The trial court denied the objection, and the exhibit was admitted.
Subsequently, Moss testified she compared the DNA profile in State's Exhibit No. 56 to the DNA profile obtained from appellant's buccal swab. Appellant objected "on the basis of the motion that we previously filed that the Court has ruled on concerning the buccal swabs." The trial court "again denied" that objection, a ruling not challenged on appeal. Moss then testified that she determined that these DNA profiles "matche[d]," excluding an identical twin; specifically, the frequency of finding a random individual within the "black population data base" that matched this DNA profile was 1 in 14.46 quadrillion unrelated individuals.
The State argues that appellant failed to preserve his Confrontation Clause challenge to State's Exhibit No. 56 because he failed to object when Moss testified to her use of the DNA chart. An objection must be timely, specific, pursued to an adverse ruling and must be made each time inadmissible evidence is offered. Haley v. State, 173 S.W.3d 510, 516-17 (Tex. Crim. App. 2005) (citing Tex. R. Civ. P. 33.1(a)). Two exceptions apply to the requirement of subsequent objections: counsel may obtain a running objection or request a hearing outside the presence of the jury. See id. at 517. Neither of these exceptions applies here with respect to the admission of State's Exhibit No. 56. Even though appellant objected to Moss's testimony concerning the DNA profile obtained from his buccal swab evidence, he did not object to State's Exhibit No. 56 when Moss subsequently testified to its contents. We agree appellant failed to preserve his Crawford challenge to State's Exhibit No. 56.
However, even assuming appellant preserved his complaint and, further, assuming without deciding that State's Exhibit No. 56 was testimonial and that the trial court erred in admitting it in violation of Crawford, we conclude any such error was harmless beyond a reasonable doubt. In light of this record, we conclude the DNA chart was important to the State's case to show appellant as the person involved in S.B.'s robbery. However, this evidence of appellant's identity as the perpetrator was cumulative of S.B.'s testimony as to the circumstances of the robbery that were similar to the circumstances of other crimes: a disguised man woke S.B. during the night, wielded a gun, demanded her purse, and forced her to drive to an ATM to withdraw money. The DNA profile is also corroborated by Moss's testimony that she compared it to appellant's buccal swab and determined they matched. Further, as set out above, the State's case on punishment was strong. Therefore, considering the entire context of the punishment phase of the trial, we cannot conclude there was a reasonable probability that any Crawford error in admitting State's Exhibit No. 56 moved the jury from a state of non-persuasion to one of persuasion on the punishment issue. Rather, we conclude beyond a reasonable doubt that any such error was harmless. See Tex. R. App. P. 44.2(a) ; Woodall, 336 S.W.3d at 639 n.6; Davis, 203 S.W.3d at 852-53. We resolve appellant's fifth issue against him.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his sixth and eighth issues, appellant contends that the trial court abused its discretion by denying his amended motion for new trial on grounds of ineffective assistance of counsel and "the interest of justice" because trial counsel failed to investigate and present evidence supporting the defense at punishment, referring specifically to the newspaper article reporting allegations against SWIFS. In his seventh issue, appellant contends he was denied effective assistance of trial counsel because, during the punishment phase, appellant's counsel offered evidence not supported by the record and detrimental to appellant.
A.Standard of Review and Applicable La
It is well-established that granting a motion for new trial rests within the sound discretion of the trial court. State v. Gill, 967 S.W.2d 540, 541 (Tex. App.-Austin 1998, pet. ref'd); State v. Gonzalez, 820 S.W.2d 9, 12 (Tex. App.-Dallas 1991), aff'd, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993). The trial court's ruling is presumed to be correct, and the burden rests upon the appellant to establish the contrary. Gill, 967 S.W.2d at 541 (citing Lee v. State, 322 S.W.2d 260, 262 (Tex. Crim. App. 1958)). Furthermore, when no findings of fact or conclusions of law are made by the trial court, we uphold the judgment if any appropriate ground exists to support it. Id.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish by a preponderance of the evidence that: (1) counsel's representation fell below the standard of professional norms, and (2) but for counsel's deficiency, there is a reasonable probability that the outcome would have been different. See Strickland v. Washington, 466 U.S. 668, 689 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000). Ineffective assistance of counsel claims "are not built on retrospective speculation," but "must be firmly founded in the record," with the record itself affirmatively demonstrating the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App. 2002) (internal quotations omitted).
B.SWIFS Evidence (Appellant's Sixth & Eighth Issues)
1.Newspaper article
The newspaper article discussed Nulf's allegations; he worked at SWIFS as a forensics biologist in the serology lab for fourteen months before he was fired. It reported that SWIFS said he was fired for work-related reasons. Nulf alleged he was fired for "pointing out potentially serious problems" at SWIFS, which were specifically "outdated manuals, equipment that wasn't calibrated, analysts using expired chemicals, unsecured case files in a hallway[,] and a box fan blowing over areas where evidence is examined." The article concludes (quoting Nulf's attorney), "The DA's office needs to take a hard look at the results that are coming from SWIFS and review some of the cases they have convicted over the past several years."
2.Evidence at the Hearing on the Amended Motion for New Trial
Nulf said he did not work on appellant's case. He described in more detail the allegations noted above. However, as to the outdated manuals, the only ones mentioned dealt with serology (blood) issues. And as to the alleged use of expired chemicals, he testified the specific chemical he complained of was used in testing for blood, but it was not used "if you're testing for semen." Nulf said the conditions existed in 2008, when most of the evidence in appellant's case would have been analyzed. He said it was possible the alleged deficiencies could have affected this case.
After Nulf testified, the State called Stacy McDonald, Ph.D., the deputy chief of physical evidence at SWIFS and the acting forensic biology supervisor. McDonald had worked on this case and had testified at the trial. McDonald testified as to Nulf's specific allegations as set out above: (1) others had pointed out shortcomings of the manuals and, when she solicited suggestions, Nulf requested the addition of flow-charts; (2) SWIFS's schedules showed a proper calibration of the autoclave (used to sterilize items using high temperature and pressure) for its function in the lab, and SWIFS's accrediting agency had reviewed and passed the schedules, and there were no autoclave discrepancies in appellant's case file; (3) there was no quality issue associated with the alleged expired chemical because records showed it had passed "quality control," and the particular chemical discussed was used in testing blood, not seminal fluid; (4) the unsecured case files contained notes of cases, not evidence, and were only accessible to approved SWIFS personnel; and (5) McDonald asked analysts whether the box fan was ever blowing when they were screening evidence, and they replied in the negative.
3.Discussion
On appeal, appellant makes the same arguments as in his amended motion for new trial: counsel was ineffective for failing to investigate Nulf's claims concerning SWIFS because such evidence could "potentially have exonerated him" and "possibly have reduced his sentence." However, the DNA tests concerning the offenses against J.L. and S.B. occurred in 2005 and 2006, before Nulf's employment. In addition, the record shows that Nulf's allegations concerning the outdated manuals and expired chemical would not have impacted SWIFS's DNA testing in this case. And there was conflicting evidence from McDonald as to any impact from the alleged uncalibrated autoclave, case notes stored in a hallway, and the box fan. Accordingly, even assuming counsel's failure to investigate Nulf's allegations and present such evidence at the punishment phase fell below the standard of professional norms, we cannot conclude that, but for such deficiency there is a reasonable probability that the outcome of the punishment phase would have been different. See Strickland, 466 U.S. at 689 (1984); Cardenas, 30 S.W.3d at 391; Hernandez, 726 S.W.2d at 54-55. Discerning no abuse of discretion by denying appellant's amended for new trial on the grounds stated in appellant's sixth and eighth issues, we resolve those issues against him.
C.DNA Evidence (Appellant's Seventh Issue)
1.The Recor
During appellant's testimony and in the course of questioning as to how appellant's DNA could have been found at the location of the crime scenes, counsel referred to "the testimony of Kathy Smith" and that "DNA [was] alleged to have been found at the crime scene for Kathy Smith." Appellant said he did not remember such testimony, and then counsel asked appellant, "Do you have any reason to believe that your DNA should be at the residence of Kathy Smith?" Appellant said, "No, it should not."
2.Discussion
There was no evidence connecting appellant's DNA to "Kathy Smith." However, there was testimony connecting his DNA to crime scenes involving S.B., J.L., M.W., and D.W. Therefore, assuming any questioning concerning Kathy Smith fell below the standard of professional norms, we cannot conclude that, but for such deficiency, there is a reasonable probability that the outcome of the punishment phase would have been different. See Strickland, 466 U.S. at 689 (1984); Cardenas, 30 S.W.3d at 391; Hernandez, 726 S.W.2d at 54-55. We resolve appellant's seventh issue against him. V. BRADY V. MARYLAND VIOLATION
In his third issue, appellant argues that the State's failure to timely disclose the fact that the forensic lab was "under investigation" violated his right to due process and a fair trial under Brady, 373 U.S. at 87. Appellant argues that "the fact [the State] was aware that SWIFS was under investigation violated his right to due process and a fair trial" because "alleged improprieties" at SWIFS constituted exculpatory evidence. Even though appellant does not phrase his issue in terms of the denial of his amended motion for new trial, or in terms of any other ruling by the trial court, he relies on testimony developed at the hearing on his amended motion for new trial to support his argument.
The State responds that appellant failed to preserve his Brady violation issue for review because he failed to raise it in his amended motion for new trial or at the hearing. See Keeter v. State, 175 S.W.3d 756, 759-61 (Tex. Crim. App. 2005) (because of nature of complaint on appeal-trial court erred in denying motion for new trial-preservation requires raising Brady complaint "at some point during the motion for new trial proceedings").
Appellant's reliance on Delapaz v. State, 228 S.W.3d 183, 213 (Tex. App.-Dallas 2007, pet. ref'd), to support his argument that no objection was required to preserve this claim is misplaced because preservation was not at issue in that case. Appellant did not mention Brady or "exculpatory evidence" in his amended motion for new trial, and our review of the hearing does not reveal that appellant raised such issue. Therefore, we conclude appellant failed to preserve his Brady claim for review. See Keeter, 175 S.W.3d at 759-61. We need not consider his third issue.
VI. REFORMATION OF THE JUDGMENT
In his ninth issue, appellant contends the judgment should be reformed to reflect the correct names of the State's attorneys and the complete names of his trial counsel. The record reflects: (1) the State's attorneys were Erin Hendricks and Kendall Castello, and (2) appellant's trial counsel were Stanley Mays and Kenneth Weatherspooon. The State concedes the judgment is both incorrect and incomplete, respectively.
This Court has the authority to correct the trial court's judgment to make the record speak the truth when it has the necessary data and information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). We resolve appellant's ninth issue in his favor. We modify the judgment to include the names set forth above. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30.
VII. CONCLUSION
Based on our disposition of appellant's issues, we modify the judgment to include the correct names of trial counsel, and affirm the judgment as modified.
JIM MOSELEY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
091313F.U05
STANLEY VERNELL LEDBETTER, JR., Appellant
v.
THE STATE OF TEXAS, Appellee
No. 05-09-01313-CR
Appeal from the 292nd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. Cause No. F08-73084-V).
Opinion delivered by Justice Moseley, Justices Richter and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: we STRIKE the names of the Attorney for State and Attorney for Defendant and MODIFY the judgment by adding Erin Hendricks and Kendall Castello as Attorneys for State and Stanley Mays and Kenneth Weatherspoon as Attorneys for Defendant.
As modified, the judgment is AFFIRMED.
Judgment entered August 10, 2012.
JIM MOSELEY
JUSTICE
A pseudonym used to identify and refer to the complainant at trial.
. The trial court sustained the State's objection on grounds of untimeliness to appellant's second amended motion for new trial, which included an "in the interest of justice" ground for new trial. But at the end of the hearing, the trial court permitted an amendment to appellant's amended motion for new trial on that additional ground.