Opinion
No. 05-04-01143-CR
Opinion filed January 3, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 4-84306-00.
Affirmed.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
OPINION
Appellant was convicted of the misdemeanor offense of reckless driving, see Tex. Transp. Code Ann. § 545.401 (Vernon 1999), sentenced to twenty days' confinement in the county jail, and fined $200. In two issues, appellant challenges the trial court's overruling his objection to certain comments during jury argument and denying his motion for continuance regarding timely disclosure of certain witnesses' statements. For the following reasons, we resolve appellant's two issues against him and affirm the trial court's judgment.
I. FACTUAL BACKGROUND
Appellant was indicted for intentionally and knowingly driving a vehicle in willful and wanton disregard for the safety of persons and property. See id. There was evidence that appellant, who was driving a gray BMW, was weaving in and out of highway traffic and driving on the right shoulder to pass vehicles. When appellant cut back into traffic from the shoulder, he hit the complainant's vehicle, a red jeep, which was traveling in the center lane. Both vehicles hit the center retaining wall. The complainant's vehicle rolled over and came to rest in the center lane. The complainant was seriously injured.
II. JURY ARGUMENT
In his first issue, appellant contends the trial court erred in overruling his objection to the prosecutor's comments during closing argument on appellant's failure to testify. An eyewitness saw appellant driving on the right shoulder of the highway. On direct examination, Steven Van Note, an police expert in accident reconstruction called to the scene of the accident, was asked if it is "permissible to drive on the shoulder of the highway," to which Van Note replied "Under certain circumstances, yes." He further explained that it would be proper "if the vehicle in front of you was making a left-hand turn or to avoid a collision." On redirect examination, Van Note was asked whether appellant "had a legal right to be on either shoulder in the particular instance," and Van Note replied in the negative, forming his opinion from his interviews with the drivers-including appellant — and other witnesses, and the physical evidence.
During closing argument, the prosecutor argued:
Intentionally or knowingly drive a motor vehicle with willful or wanton disregard for the safety of other persons or property. The Defendant was passing on the shoulder of the highway, he was passing cars. That is reckless. And he did it intentionally. He didn't accidentally end up in there. We didn't hear testimony that all of a sudden he had an epileptic seizure of some kind. We didn't hear testimony that somehow there's a load of killer bees that escaped from the zoo and they ended up in the back seat of his car and they were stinging him and he, you know, oh, my God, I've got to get on the shoulder.
Appellant's counsel objected "as a comment on the Defendant's right to remain silent." The trial court said:
I'll overrule the objection. However, I've already instructed the jury in the charge the fact that the Defendant didn't testify is not in any way to be held against him. All right. Let's go on.A. Applicable Law and Standard of Review
Prosecutorial argument that refers to a defendant's failure to testify violates the defendant's Fifth Amendment of the United States Constitution right against compelled self-incrimination, article I, section 10 of the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure. Griffin v. California, 380 U.S. 609, 613-14 (1965); Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001); Cook v. State, 702 S.W.2d 597, 599 (Tex.Crim.App. 1984); Bird v. State, 527 S.W.2d 891, 893 (Tex.Crim.App. 1975). The offending comment must be viewed from the jury's standpoint, and the implication that the comment referred to the defendant's failure to testify must be clear. Bustamante, 48 S.W.3d at 765. However, it is "not sufficient that the language might be construed as an implied or indirect allusion." Id. "The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id. The argument is improper if it directs the jury's attention to an absence of testimony only the defendant could supply. See Angel v. State, 627 S.W.2d 424, 426 (Tex.Crim.App. 1982). However, if the language used can be reasonably construed as referring to the appellant's failure to produce evidence other than his own testimony, it is not an improper remark. Nowlin v. State, 507 S.W.2d 534, 536 (Tex.Crim.App. 1974). The facts and circumstances of each case must be analyzed to determine whether the language directs the jury to the defendant's failure to testify. Dickinson v. State, 685 S.W.2d 320, 323 (Tex.Crim.App. 1984).
B. Discussion
The Court of Criminal Appeals has held that use of the word "I" in a prosecutor's jury argument may constitute harmful error. See Cook v. State, 702 S.W.2d 597, 599 (Tex.Crim.App. 1984); Cherry v. State, 507 S.W.2d 549, 550 (Tex.Crim.App. 1974). In Cherry, 507 S.W.2d at 550, the prosecutor argued, "Now what defenses are available to a person in a case like this? Number one, alibi, I was somewhere else, I was with someone else." The Cherry court found that the choice of the word "I" contradicted any theory that the prosecutor was referring to witnesses other than the defendant. Id.
Likewise, in Cook, 702 S.W.2d at 598, the court determined the following comments constituted reversible error:
During voir dire I told you at that time that I would find out what the defense is the same time you find out, and A., I told you first of all there are several defenses we usually heard. A., would be mistaken identity. They couldn't do that because everybody identified him. B., using the alibi. Someone else, because " I was somewhere else. I've got my alibi, because I was playing poker with the guys." It wasn't that. Again, because all of the evidence involved. C., consent. There was no affirmative consent shown as to what happened during the attack. Only innuendoes and suppositions about what may have happened.
Examining the comment from the jury's standpoint, the Cook court stated, "When the word `I' is used in reference to something the defendant might have testified to, but did not, it is illogical to think that the jury is not reminded of the defendant's failure to testify." Id. at 599.
However, the State argues the prosecutor's argument here is distinguishable from the statements disapproved of in Cook and Cherry. Van Note testified as to his investigation of why appellant was driving on the shoulder, including his interview with appellant and others and his observations at the scene. The prosecutor's argument could be construed as referring to Van Note's failure to identify any facts that would have provided appellant with a "legal right" to drive on the shoulder.
Even if the trial court erred in overruling appellant's objection, we conclude any error was harmless. An improper comment on a defendant's failure to testify is reviewed for constitutional harm under rule of appellate procedure 44.2(a), and we reverse only when we determine beyond a reasonable doubt that the error contributed to the defendant's conviction or punishment. See Tex.R.App.P. 44.2(a); Wimbrey v. State, 106 S.W.3d 190, 192 (Tex.App.-Fort Worth 2003, pet. ref'd.). In applying the "harmless error" test, our primary inquiry is what effect the error had, or reasonably may have had, on the jury's decision. Id. We focus on the error rather than the propriety of the outcome of the trial, trace its probable impact upon the jury, and determine whether it contributed to the conviction or punishment. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000); Wimbrey, 106 S.W.3d at 192-93. We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would likely encourage the State to repeat it with impunity. Wimbrey, 106 S.W.3d at 193. This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution. Id.
The complained-of comments were a small part of the prosecutor's argument and were not emphasized or mentioned again. The trial court called the jury's attention to the jury charge admonishment that appellant's failure to testify should not be held against him, even though the trial court overruled appellant's objection. See id.; see also Moore v. State, 999 S.W.2d 385, 405 (Tex.Crim.App. 1999) (considering in harm analysis trial court's instructing jury to disregard improper argument as to failure to testify and jury charge instruction as to election not to testify). After reviewing the record under the standard of rule 44.2(a), we conclude beyond a reasonable doubt that any error did not contribute to appellant's conviction or punishment. Accordingly, we resolve appellant's first issue against him.
III. DISCLOSURE OF WITNESSES' STATEMENTS
In his second issue, appellant contends the trial court erred in denying his motion for continuance urged after the State failed to timely disclose, in their entirety, the statements of two eyewitnesses, Billy Gomez and Gary Mitchell, thus violating appellant's due process rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
In pretrial motions, appellant requested "[t]he names, addresses[,] and telephone numbers of all witnesses or persons in the State's possession or under their control who have given evidence which is exculpatory regarding the Defendant's participation in the offense charged . . ." and to "make available to the Defendant all evidence which is favorable to him. . . ." On March 17, 2003, the trial court granted the requests. On August 21, 2003, the State filed a response, which included Gomez's and Mitchell's addresses and telephone numbers and the following statement:
His statement is unclear, but witness Billy Gomez states that a red jeep (presumably the victim's vehicle) came across two or three lanes and struck a grey compact. His statement does not specify which way the victim's car was moving or if the small grey compact was the Defendant's vehicle. Witness Gary Mitchell stated that the victim swerved from the right to the left (away from the Defendant) and hit a car in the far left lane right before striking the guardrail. This may be what Gomez is referring to. To date the D.A.'s Office has been unable to serve Gomez with a subpoena.
The final jury setting was August 13, 2004. Immediately following voir dire, appellant presented a motion to dismiss for lack of a speedy trial, arguing the absence of Billy Gomez, an exculpatory witness, hurt appellant. During the hearing, appellant introduced the State's August 21, 2003 response to the discovery request, detailed above. Appellant's counsel stated:
I would advise the court we have not, to this date, received a copy of Billy Gomez's statement. But it seems clear to us that it's exculpatory information. The witness has been lost due to the amount of time — due to the amount of time on this case or because information wasn't gathered initially concerning Billy Gomez and his locations and accurate phone numbers. It's clearly an exculpatory witness.
The trial court denied the motion for dismissal. Then, counsel asked for a copy of Gomez's statement, which the State provided. Gomez's statement was admitted for record purposes only; it provided:
From where I was at the time of the [w]reck a red jeep came across 2 or 3 lanes and continued over until striking a small grey compact. From that point my view was blocked by a diesel, and then I saw the jeep fly into the air and flip. It looked like she/he was experiencing some trouble a blow out perhaps, or a van cut and when it stopped the cars were separated . . .
[A] van . . . stopped that was very badly dented in rear, and could have been involved.
Appellant orally requested a continuance "based on this late presentation of information" to investigate "an alternate explanation to the cause of this accident." Appellant asked the court to waive the requirement for a written, sworn motion for continuance, and the State said it did not object to an oral motion. The trial court granted the request to waive the procedural requirements, and denied the motion for continuance.
Appellant's counsel then cross examined Van Note about Gomez's statement. Van Note testified that physical evidence did not support some of Gomez's observations or the possibility of a blow out. Van Note also identified Mitchell as another eyewitness to the incident. Van Note said he had a copy of Mitchell's statement, and counsel requested and obtained a copy from the State. Mitchell's statement was admitted for record purposes only; it provided:
I was traveling northbound on 75 just past Legacy in the far left lane. I saw a red jeep type truck quickly swerve from the far right lane across traffic and collide into the side of a car in the far left lane. When the jeep type truck went across the lanes it look[ed] at [sic] though her vehicle was out of control. Before the truck went across the lanes and collided with the other vehicles I saw a cloud of dirt suggesting maybe she went off the shoulder of the road first then lost control coming back onto the hwy [sic].
Appellant's counsel cross examined Van Note about Mitchell's statement, and Van Note testified that the physical evidence did not support Mitchell's statement regarding complainant's vehicle colliding with another vehicle on her left or going onto the shoulder. After both sides rested and closed, appellant renewed his motion for continuance and requested a mistrial "based on the late production of exculpatory evidence in the form of the exculpatory statement of Gary Mitchell." The trial court denied the motion.
A. Applicable Law and Standard of Review
A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Brady, 373 U.S. at 87; Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999). The three-part test used to determine whether a prosecutor's actions have violated due process is whether the prosecutor (1) failed to disclose evidence (2) favorable to the accused, and (3) the evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Little, 991 S.W.2d at 866. When the evidence is disclosed at trial, the issue is whether the tardy disclosure prejudiced the defendant. Id. If the defendant received the material in time to use it effectively at trial, his conviction should not be reversed just because it was not disclosed as early as it might have and should have been. Id. However, a Brady violation does not arise if the defendant, using reasonable diligence, could have obtained the information. Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994); United States v. Ramirez, 810 F.2d 1338, 1343 (5th Cir. 1987).
When previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance. Young v. State, No. 12-04-00018-CR, 2005 WL 1903347, at *5 (Tex.App.-Tyler Aug. 10, 2005, pet. filed) (citing Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.)). The failure to request one waives any Brady violation, as well as any violation of a discovery order. Id. (citing Gutierrez v. State, 85 S.W.3d 446, 452 (Tex.App.-Austin 2002, pet. ref'd)). We review a trial court's ruling on a motion for continuance for abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002). To establish an abuse of discretion, the defendant must show that he was actually prejudiced by the denial of his motion. Id. B. Discussion
Although appellant moved for continuance as to Gomez's statement before cross examining Van Note as to its contents, he did not move for a continuance as to Mitchell's statement until after cross examination of Van Note as to Mitchell's statement and the close of evidence. In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds of his complaint. See Tex.R.App.P. 33.1(a)(1)(A). To be timely, a complaint must be made as soon as the ground for complaint is apparent or should be apparent. See Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App. 1999). Under the circumstances here, we cannot conclude that appellant's motion for continuance directed to Mitchell's statement was timely. Accordingly, we conclude he failed to preserve his complaint as to Mitchell's statement.
In Williams, the prosecutor provided a summary of the statement of a non-testifying eyewitness to a robbery. The summary included a cross reference to the full written statement — "For details see written statement" — which suggested the victim may have provoked the defendant, although the summary did not so indicate. See Williams, 35 F.3d at 163 n. 6.
Assuming without deciding that appellant preserved his complaint as to Gomez's statement, the State's response lists Gomez as a witness and clearly provides a summary of a statement by Gomez, although the summary does not explicitly refer to a "written statement" or to "details" not provided in the summary. Moreover, the summary is numbered "6," specifically referring to paragraph number 6 of the court's order, which addressed "[a]ll exculpatory and mitigating evidence." Although the summary was provided about one year before trial, appellant never requested the written statement.
Appellant's reliance on Flores v. State, 940 S.W.2d 189, 190 (Tex.App.-San Antonio 1996, no pet.), to support his argument of reasonable diligence is misplaced. In Flores, a witness made written and oral statements which the prosecutor did not disclose to the defendant, arguing that the defendant should have used reasonable diligence to discover the witness who provided the evidence. But, in contrast to the case before us, the defense did not know of the existence of the witness or that any oral statement had been made. See id. at 191-92. We conclude appellant could have obtained the exculpatory statements through reasonable diligence. See Williams, 35 F.3d at 163.
Moreover, even if appellant showed reasonable diligence under the circumstances, we conclude his Brady claim must fail. The record shows that appellant cross examined Van Note extensively as to the cause of the incident, including Gomez's observations. Although appellant argues that, had he known of Gomez's full statement, he would have obtained a expert accident reconstructionist, he does not explain how such a second expert would have testified differently from Van Note, whose expert qualifications appellant does not challenge on appeal. Further, although appellant argues he would have been alerted to the "crucial need" to have Gomez present at trial, he does not explain what additional evidence Gomez would have provided. Accordingly, we conclude the record shows that appellant received Gomez's written statement in time to use it effectively at trial. See Little, 991 S.W.2d at 866. We conclude the trial court did not abuse its discretion in overruling appellant's oral motion for continuance. We resolve his second issue against him.
IV. CONCLUSION
Having resolved appellant's two issues against him, we affirm the trial court's judgment.