Jimmy Brian Arsola v. State ( 1998 )

Nos. 04-96-00963-CR & 04-96-00964-CR

Jimmy Brian ARSOLA, Appellant

v.

The STATE of Texas, Appellee

On Appeal from the 290th Judicial District Court, Bexar County, Texas Trial Court No. 96-CR-1530 & 96-CR-1531 Honorable Sharon MacRae, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. López, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 26, 1998

AFFIRMED

Jimmy Brian Arsola was convicted of two counts of aggravated assault with a deadly weapon and sentenced to twenty years confinement in the Texas Department of Criminal Justice - Institutional Division. Arsola appeals, contending the trial court erred in refusing to compel the State to provide him with copies of two witness statements. We disagree and affirm.

Factual and Procedural Background

On October 7, 1995, sixteen-year-old Nicole Mora and her twin brother, Daniel, were at the home they shared with their parents, siblings, and two other teenagers, Erica Jenkins and Christine Grunewald. Visiting that evening were two other friends, Mike Raslawsky and Chris Montero. Raslawsky was upset because Christopher Shaver and a friend had beaten Montero earlier in the day.

After Mr. and Mrs. Mora went to bed around 10:00 p.m., an intoxicated Raslawsky called and spoke with Christopher Shaver and his step-sister, Allison Taylor. At Raslawsky's urging to "come on over" and "take care of this," Shaver rang the doorbell at the Moras' front door approximately one-half hour later. Shaver was accompanied by Allison's boyfriend, Jimmy Brian Arsola. Initially, Nicole and Erika answered the door. As the confrontation escalated, the two girls were joined by Christine and Daniel. Ultimately, Arsola fired two shots, hitting Nicole in the shoulder and Daniel in the chest.

Arsola was charged with two counts of aggravated assault with a deadly weapon. The jury found him guilty on both counts, and he was sentenced to twenty years confinement in the Texas Department of Criminal Justice - Institutional Division. Arsola timely appealed.

Brady

Arsola concedes his attorney inspected the State's file and reviewed Mr. Mora's and Christine Grunewald's written statements, which allegedly include hearsay statements by Chris Montero and Nicole Mora that Shaver was the shooter.⁽¹⁾ In his first point of error, however, Arsola argues the trial court erred in failing to compel the State to provided him with copies of these statements to use for impeachment purposes and as substantive evidence. We disagree.

"Under Brady v. Maryland, a prosecutor has an affirmative duty to turn over material, exculpatory evidence." Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993) (citing Brady

v. Maryland, 373 U.S. 83 (1963)). "Exculpatory evidence" within the reach of Brady includes evidence that may only be used for impeachment purposes. Kimes, 872 S.W.2d at 702 (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). However, "evidence is 'material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5 (1995) (per curiam). As a general rule, therefore, the State is not required to disclose inadmissible evidence. See id.; Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App.), cert. denied, 118 S. Ct. 305 (1997). A prosecutor fulfills his Brady duty by "open[ing] his files for examination by defense counsel." Givens v. State, 749 S.W.2d 954, 957 (Tex. App.--Fort Worth 1988, pet. ref'd) (citing Diaz v. State, 722 S.W.2d 482, 490 (Tex. App.--San Antonio 1986), vacated and remanded on other grounds, 761 S.W.2d 1 (Tex. Crim. App. 1988) (per curiam)).

We review a trial court's ruling on whether evidence is within the reach of Brady "in light of the entire record," Lagrone, 942 S.W.2d at 615, under an abuse of discretion standard. Dixon v. State, 923 S.W.2d 161, 167 (Tex. App.--Fort Worth), vacated and remanded on other grounds, 928 S.W.2d 564 (Tex. Crim. App. 1996) (per curiam). Under the abuse of discretion standard, we view the evidence in the light most favorable to the trial court's ruling, affording almost total deference to findings of historical fact that are supported by the record. Loserth v. State, 963 S.W.2d 770, 772-74 (Tex. Crim. App. 1998); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, when the resolution of the factual issue does not turn upon an evaluation of credibility or demeanor, we review the trial court's determination of the applicable law, as well as its application of the appropriate law to the facts it has found, de novo. Id.; see Ornelas v. United States, 517 U.S. 690, 697-700 (1996) (de novo review of trial court's determination of reasonable suspicion).

The State fulfilled its Brady duty in this case by opening its files for Arsola's attorney's inspection. Givens, 749 S.W.2d at 957. And even if this disclosure did not suffice, there is no "'reasonable probability'" that "the result at trial would have been different" had the State provided Arsola with copies of the two statements. Wood v. Bartholomew, 516 U.S. at 5. The hearsay within hearsay was clearly inadmissible to impeach Mr. Mora and Christine Grunewald because they did not testify;⁽²⁾ nor was it admissible to impeach Chris Montero and Nicole Mora because, although they denied making the statements, the statements were not their own. See Kimes, 872 S.W.2d at 704 (offense reports and witness statements naming a third party inadmissible to impeach third party); see Tex. R. Evid. 613. Nor has Arsola made any showing the statements were admissible as substantive evidence. See Tex. R. Evid. 805 (each part of hearsay within hearsay must conform to a hearsay exception). Montero, for instance, did not witness the shooting; therefore, any statement he might have made as to the identity of the shooter would not be admissible as substantive evidence. See Tex. R. Evid. 602 (witness may only testify to matters of which he has personal knowledge).

Under these circumstances, Arsola has not shown Brady error; to the contrary, he has made substantially less of a showing than was made in Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995), in which the court held the trial court did not err in finding the State's disclosure of a third party's confession would not have changed the outcome of the proceeding. Id. at 495. For the same reason, Arsola has made no showing that his attorney's failure to obtain copies of the statements constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 695 (1984). We therefore overrule his first point of error.

Photographs

In his second point of error, Arsola argues the trial court erred in admitting five photographs of the front of the Moras' house because the lighting in the photographs differed from the lighting at the time of the assault. We disagree.

The trial court's admission of photographs into evidence is governed by an abuse of discretion standard of review. McGee v. State, 774 S.W.2d 229, 241 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1060 (1990). An abuse of discretion does not occur if "discrepancies between the picture and the subject at its relevant time" are "properly pointed out ...." Johnson v. State, 583 S.W.2d 399, 404 (Tex. Crim. App. 1979). The record establishes Arsola cross-examined Nicole Mora as to the lighting in the photographs and the lighting at the time of the assault. We therefore overrule his second point of error.

Jury Argument

In his third point of error, Arsola argues the trial court erred by permitting the State to urge the jury to "put themselves in the victim's place." The record does not support Arsola's assertion; it instead reflects a proper plea for law enforcement. See, e.g., DeBolt v. State, 604 S.W.2d 164, 169-70 (Tex. Crim. App. 1980); Nichols v. State, 504 S.W.2d 462, 465 (Tex. Crim. App. 1974). We therefore overrule Arsola's third point of error and affirm the judgment.

Sarah B. Duncan, Justice

Do not publish

1. Neither statement is contained in the appellate record, and the record in the trial court is at best confusing as to the content of the statements See Tex. R. App. P. 33.2 (requiring a bill of exceptions to preserve error when the evidence is not otherwise a part of the record).

2. The record does not establish Arsola made any effort to subpoena Mr. Mora or Christine Grunewald.

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