in Re: Michael Hooper & Associates, P.C. ( 2009 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00091-CV ______________________________





IN RE: MICHAEL HOOPER & ASSOCIATES, P.C.

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Original Mandamus Proceeding

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Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

   Michael Hooper & Associates, P.C., has filed a petition asking this Court to issue a writ of mandamus against the Honorable John Ovard, Administrative Judge of the First Administrative Region, in Dallas, Texas. In the petition, Relator complains that mandamus should issue because Ovard did not hold a hearing on Relator's motion to recuse a district judge.

This Court has jurisdiction to issue a writ of mandamus against "a judge of a district or county court in the court of appeals district." Tex. Gov't Code Ann. § 22.221(b) (Vernon 2004). Dallas County is not within this court-of-appeals district, and Ovard is not a judge of a district or county court within this district. See Tex. Gov't Code Ann. § 22.201(g) (Vernon 2004). We have no jurisdiction over this petition.

We deny the petition for writ of mandamus.

Josh R. Morriss, III

Chief Justice

Date Submitted: October 7, 2009

Date Decided: October 8, 2009

mily: Univers Medium"> error when it provided Scott with criminal histories of the State's rebuttal witnesses during trial. On a thorough review of the evidence and arguments, we affirm Scott's conviction and sentence of life imprisonment.   

I. Evidence of Entering Habitation Without Permission and Use of a Deadly Weapon

Scott's first point of error claims the evidence is factually insufficient to support a finding that he entered Randall Brian's habitation without permission. ⁽²⁾ His second point claims there is factually insufficient evidence to support the deadly weapon finding. The indictment alleged Scott "did . . . intentionally or knowingly enter a habitation, without the effective consent of Randall Brian, . . . and attempted to commit or committed the felony offense of aggravated assault with a deadly weapon . . . ." Because both these points of error need a detailed examination of the evidence presented, we will address them together.

In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the fact-finder's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); see also Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). It is the fact-finder's role to judge the credibility of the witnesses and the weight to be given their testimony, and the fact-finder "may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit." Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim. App. 1974); see also Scott v. State, 814 S.W.2d 517, 518-19 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). When evidence both supports and conflicts with the verdict, we must assume that the fact-finder resolved the conflict in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) ("our factual-sufficiency jurisprudence still requires an appellate court to afford 'due deference' to the jury's determinations"). The appellate court's role is not to "find" facts; rather, it is to determine whether the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. Ballard v. State, 161 S.W.3d 269, 277 (Tex. App.--Texarkana 2005), aff'd, 193 S.W.3d 916 (Tex. Crim. App. 2006) ("trial court, acting as finder of fact in the face of conflicting evidence, was authorized to believe or disbelieve any portion of the evidence").

Facts

Randall Brian ⁽³⁾ was in his living room, playing video games, around 1:00 a.m. on April 19, 2003. He had a loaded shotgun on his lap and seventy-five pounds of marihuana in his closet. Brian testified he did not know Scott and had never met him. According to Brian, three intruders, wearing ski masks, broke down the door from his carport to his kitchen and immediately began shooting their firearms at him. Brian testified he did not give anyone permission to enter his house. When he heard his door open, Brian pressed a small button on his video game controller and "paused" his game. ⁽⁴⁾ Brian rolled off the couch and returned fire, hitting one intruder. The first shot by the intruders hit Brian in his left ear. Brian's shots struck one intruder, who yelled, and continued firing. The person shot by Brian was between the aquarium and kitchen bar/counter. Brian said that person, hit by Brian's shot, "fell back against my bar" leaving blood and handprints. This all transpired in a "matter of seconds."

The gunmen left Brian's house as they had entered, through the carport entrance. Blood was found in Brian's house in the carport entrance area where the gunmen entered, in the carport, in the driveway, and in the street. The trail of blood spots in the street left a path to a vacant lot next to Brian's house. Blood in the house and in the driveway was positively identified as Scott's.

Scott appeared in the early morning hours after the shooting at Christus St. Michael hospital in Texarkana; he was being treated for a gunshot wound to his right thigh. Scott told police he had been shot at a barbecue. At trial, Scott testified he had bought marihuana from Brian on previous occasions and had been at Brian's house on at least five or six prior occasions. Scott testified that, on the evening of the shooting, he had been drinking a good deal and had "popped a few zanec [sic] bars." He was having a barbecue with friends and they ran out of marihuana, so he called Brian and arranged to purchase three pounds of marihuana for $1,500.00. According to Scott, he knocked at the carport door and Brian answered and let him in. Scott said his package of marihuana was on the dining room table; he paid $1,500.00 to Brian, who went to the couch and counted the money. Scott said that, as he was leaving, the door was knocked down and men with guns entered and started shooting. He said that, after the shooters left, Brian helped him up and said he could retrieve his marihuana later. Scott said he went back to his brother, waiting in a car outside, and the next thing he remembers is being at the hospital.

Scott also testified that, about a month and a half before trial (April 2006), he encountered Brian in the Bowie County jail annex. When Scott asked Brian why Brian had not told "the truth" about the circumstances the night of the shooting, Brian told Scott "that it wasn't him [Brian], it was the State. [Brian] had to press charges. All he made was a statement, and they got something holding over his head and that's the reason why he was going to court."

Scott presented testimony from Quinton McMillan, who had met both Scott and Brian, at different times, in the Bowie County jail system. McMillan testified he knew Brian and had seen him in the jail, and when McMillan asked about the crime which had led Brian to being incarcerated, Brian said he had been involved in selling marihuana to someone, and in the course of selling the drugs, his door was kicked in. The only connection between Brian and Scott, according to McMillan's testimony, was that Brian "indicate[d] his familiarity with what [McMillan] later learned to be Antonio Scott."

In rebuttal, the State offered testimony of victims of two other robberies where armed men, in one case masked, had entered residences and robbed the inhabitants. Jerial Williams and Gaylon Dixon positively identified Scott as one of the masked men who robbed them and others at the home of Christopher Jones, in Texarkana, on September 30, 2003. John Kennedy testified that Thurrayya Bailey, an acquaintance of Kennedy and Scott, got Kennedy to go outside of his home on the night of July 12, 2005. While Bailey and Kennedy talked in Kennedy's car, Scott and two other men dragged Kennedy from his car, beat him, then went into his home where they threw his wife from her wheelchair and stole $2,700.00, the deed to his home, and the car keys.

II. Factual Sufficiency of the Evidence

A. Angle of Bullets

Scott bases his attacks on the sufficiency of the evidence in large part on the testimony concerning the angle of the shots fired by the intruders. Crime scene investigator Steven Womack testified the bullet holes in the wall above the couch were at a "slight angle, not a steep one . . . there was somebody that was standing, I would say John Wayne, shooting from the hip." Scott contends, "Brian testified that the four shots were fired by the intruder after the intruder was shot and after the intruder 'fell back' against the kitchen bar." Brian's testimony was as follows:

[Defense counsel]: . . . Is it your testimony or do you know who shot those four shots

above your couch? Did they all come from the same guy?

[Brian]: It was whoever I shot.

Q. Whoever . . .

A. Whoever the first guy was, whoever had the shotgun, is the one that I shot.

Q. Okay. Is he the one you hit?

A. Yes, sir.

Q. Sir?

A. Yes, sir, he is the one that I shot.

Q. So the one that you shot then was able to then shoot four more?

A. Yes, sir.

Q. Even though he fell to the ground after you shot him.

A. No, he did not fall to the ground. He fell back against my bar. There was blood and hand prints where he slid across my bar.

Q. Okay. Now how long did all that take?

A. A matter of seconds.

Officer Womack was asked the following on cross-examination:

Q. And in your investigation you were able to determine that according to Mr. Brian, he shot one of the suspects. Right?

A. Yes, sir.

Q. And that suspect landed on the ground. Right?

A. Yes, sir.

Q. Now a suspect on the ground couldn't have fired those. Correct? To get the

angle?

A. Because the angle would not be right. No, they would be an up angle.

From this testimony, Scott argues, "Womack concluded that the person who was shot could not have fired the four gunshots." We do not read Womack's testimony as requiring such a conclusion. Even though Womack agreed the intruder fell to the ground, Womack was not testifying from personal knowledge. Neither Womack nor any other investigator testified the investigation established that Scott fell to the floor. Womack's testimony appears to agree with counsel that, generally, when one is shot and falls to the floor, the angle of a bullet from such fallen person would be at an upward angle. Other than Scott's testimony, there is no other evidence Scott fell down rather than falling back against the kitchen bar/counter. Brian's testimony was explicit: when asked if the shooter fell to the floor, he corrected the cross-examiner and stated, "No, he did not fall to the ground. He fell back against my bar." This created a factual issue to be resolved by the jury.

B. Blood, Video Game Pause, Brian's Statements

According to Scott, Brian's testimony that he put his video game on pause as armed intruders were crashing down his door is untenable. Scott claims that the amount and location of blood in Brian's home supports Scott's version of events and contradicts Brian's. Further, Scott claims that Brian's purported statements in jail to Scott, and the testimony of McMillan, marshal against Brian's allegations and support Scott's testimony.

As for the matter of the blood at the scene, from the record before us, it appears there are patches and spots of blood in front of the kitchen bar/counter, as well as in front of the wall where the aquarium and television were located. We note, also, that these two areas are not on opposite sides of the room, but rather are relatively close. Thus, this element of Scott's argument, as well as the issue of the paused video game, the credence to be given to statements attributed to Brian while he and Scott were in jail, the large, packaged amount of marihuana and cash found in the kitchen drawer, and the testimony of McMillan were submitted to the jury to reconcile any conflicts or contradictions.

Conflicts in testimony are to be resolved by the finder of fact--here, the jury. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984); Bottenfield v. State, 77 S.W.3d 349, 355 (Tex. App.--Fort Worth 2002, pet. ref'd). The jury is free to believe or disbelieve the testimony of any witness, to reconcile conflicts in the testimony, and to accept or reject any or all of the evidence of either side. Bottenfield, 77 S.W.3d at 355. We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.--Dallas 1996, no pet.). Accordingly, the jury in this case was entitled to believe the testimony of Brian and resolve any inconsistencies in his favor. Further, in a factual sufficiency analysis, the existence of alternative reasonable hypotheses raised by the record may still be considered, but their existence is not determinative. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). The jury was charged with the task of believing either Brian's version of what happened that night, or Scott's. The jury had available all the evidence we have summarized. Viewing the evidence in a neutral light, we cannot say that the evidence supporting the verdict is so weak that the fact-finder's verdict is clearly wrong and manifestly unjust or that the great weight and preponderance of the evidence is contrary to the verdict. Watson, 204 S.W.3d at 417.

We make this finding on both the issue of whether Scott had permission to enter Brian's house and the issue of whether Scott used or exhibited a deadly weapon. Where the evidence is sufficient to support a finding that Scott entered the dwelling without the owner's permission, it is also, in these circumstances, sufficient to support a finding of Scott's use or exhibition of a deadly weapon. Once the jury rejected Scott's alibi that he had entered Brian's house with permission, the only other plausible explanation for Scott's presence was that proffered by the State--that Scott and his confederates entered the house to rob Brian and were armed. We overrule the first two points of error.

  III. Brady Issue  

Scott's final point of error complains about the way he was provided criminal histories of the State's rebuttal witnesses. In the State's rebuttal case, it presented several witnesses who implicated Scott in two extraneous armed robberies. When Scott asked for criminal histories on five of the State's rebuttal witnesses, the State indicated it did not have the histories immediately available and would provide them as soon as possible. ⁽⁵⁾ The trial court denied Scott's requests for continuances and mistrials. The trial court kept each witness available for recall. Scott's trial attorney proceeded to cross-examine the State's rebuttal witnesses. He refused at least three offers by the trial court to recall the rebuttal witnesses.

To rebut Scott's defense that he had entered Brian's house with permission, the State offered testimony implicating Scott in two other armed robberies. Along with the testimony of police officers who had investigated these crimes, the State offered witness testimony from Christopher Jones, Gaylon Dixon, Jerial Williams, Thurrayya Bailey, and John Kennedy. When Scott began cross-examining Jones, he asked for Jones' criminal history. The State replied it did not have one available but would "run" it and supply it as soon as possible. Jones testified "in the uniform of one who is incarcerated," and testified he was currently serving a federal sentence for felon in possession of a firearm. He acknowledged having been convicted of the felony offense of possession of marihuana and the misdemeanor offense of possession of marihuana. Scott's attorney cross-examined Jones and then Dixon. Dixon denied any criminal convictions. Williams acknowledged having been convicted of the felony offense of possession of marihuana and was on community supervision at the time of his testimony. At the end of its direct examination of Williams, the State announced it was providing Scott's attorney with a copy of Jones' (the first witness) criminal history. At the end of Scott's cross-examination of Williams, the State tendered Scott with criminal histories of Williams, Dixon, Kennedy, and Bailey. At this point, the State called four police officers. Bailey next took the stand for the State. She acknowledged being under indictment for aggravated robbery at the time of her testimony and denied having any felony convictions. ⁽⁶⁾ Kennedy testified next about a "whipping" Scott gave Kennedy at Kennedy's home, and that Scott and two other men robbed Kennedy. Kennedy was never asked about any criminal history. According to the history entered as evidence, in April 1995 Kennedy had entered pleas of guilty to two felony charges of delivery of more than one-fourth ounce, less than five pounds, of marihuana.

In order to ensure the accused a fair trial, the State has an affirmative duty under the Due Process Clause of the Fourteenth Amendment to turn over exculpatory or impeachment evidence favorable to the defendant which is material either to guilt or to punishment. Thomas v. State, 841 S.W.2d 399, 407 (Tex. Crim. App. 1992) (citing Brady, 373 U.S. at 85); see also Palmer v. State, 902 S.W.2d 561, 562-63 (Tex. App.--Houston [1st Dist.] 1995, no pet.). 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 suppressed evidence was material to either guilt or punishment. Fox v. State, 175 S.W.3d 475, 490 (Tex. App.--Texarkana 2005, pet. ref'd). Favorable evidence is "material" if there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome of the trial) that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Thomas, 841 S.W.2d at 404. When, however, as in the instant case, the Brady material is discovered during trial, the initial inquiry is whether the appellant was prejudiced by the delayed disclosure. Palmer, 902 S.W.2d at 565. The disclosure of Brady material during trial satisfies the requirements of due process "[i]f the defendant received the material in time to put it to effective use at trial." Id.; Givens v. State, 749 S.W.2d 954, 957 (Tex. App.--Fort Worth 1988, pet. ref'd). "[A] defendant's conviction should not be reversed simply because it [the Brady material] was not disclosed as early as it might have and, indeed, should have been." Palmer, 902 S.W.2d at 565. The Palmer ⁽⁷⁾ court's analysis focused on "whether the Brady material comes to light in time to utilize it during the presentation of evidence to the jury." Id. To prevail on his or her Brady claim, an appellant must show that the State's tardy disclosure prejudiced the appellant. Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999). To show prejudice, the appellant must show a reasonable probability that, had the evidence been disclosed to the defense earlier, the result of the proceeding would have been different. Id. at 866.

Here, Scott has not demonstrated he was prejudiced by the timing of the State's production of the criminal histories of the rebuttal witnesses. He did not recall any of the rebuttal witnesses and did not make a record of what questions he would have put to them once he possessed the possible impeachment evidence--nor did he move for a new trial to make a record of how he could have impeached the witnesses. We cannot say the delay encountered in production of the requested information undermines our confidence in the trial's outcome. As mentioned, all but one witness disclosed their pertinent convictions. The State had presented evidence putting Scott in Brian's house; the rebuttal evidence was presented to address Scott's testimony that he had permission to be there. The evidence Scott wanted (and received, albeit tardily), was at most useful to undermine the witnesses' credibility. Such impeachment was achieved to some extent when the witnesses disclosed their convictions, where applicable. Scott has failed in his burden to demonstrate a reasonable probability that the outcome of his trial would have been different.

This is not to say we approve of the procedure in this case. The State should produce such relevant information when it knows the substance of the rebuttal evidence. Finding, in this instance, that Scott has not shown that the result of this proceeding would have been different had the criminal history information been produced in a more timely manner, we find no reversible error.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: February 28, 2007

Date Decided: April 6, 2007

Do Not Publish

1. Brady v. Maryland, 373 U.S. 83 (1963).

2. Section 30.02 of the Texas Penal Code provides:

(a) A person commits an offense if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony . . . .

Tex. Penal Code Ann. § 30.02 (Vernon 2003).

3. As police investigated Brian's home, they found about seventy-five pounds of marihuana. He pled guilty to felony possession of marihuana; he was serving ten years' community supervision when he testified.

4.

According to Brian, his video game had "just a small controller. There's a button right in the center, a start button, that pauses. I heard the door open. I hit the pause, and I dropped the controller. I mean if you look at the pictures, it was on the floor. I threw it."

5. There are "omnibus" requests for discovery, criminal records of witnesses, and a motion in limine in the clerk's record, none of which indicate they were ruled on by the trial court. The matter was discussed during a pretrial hearing, where the parties agreed the defense would be provided names of the State's witnesses for the case-in-chief, but not rebuttal.

6.

The victim of the robbery for which she was indicted, John Kennedy, had filed an affidavit of nonprosecution.

7.

In Palmer, the exculpatory evidence involved a witness who would have contradicted the other State's witnesses regarding Palmer's direction of travel in a trial for criminally negligent homicide. Palmer, 902 S.W.2d at 563.