Jesse Galindo Delafuente v. State ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00376-CR
JESSE GALINDO DELAFUENTE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2016-419-C1
MEMORANDUM OPINION
Appellant, Jesse Galindo Delafuente, was convicted of evading arrest with a
vehicle. See TEX. PENAL CODE ANN. § 38.04 (West 2016). On original submission, this
Court dismissed appellant’s appeal based on his failure to timely file his notice of appeal
corresponding to a judgment granting shock probation and based on an analysis that the
judgment granting shock probation mooted the original judgment of conviction. See
generally Delafuente v. State, No. 10-16-00376-CR, 2018 Tex. App. LEXIS 4765 (Tex. App.—
Waco June 27, 2018) (mem. op., not designated for publication), rev’d, 570 S.W.3d 729
(Tex. Crim. App. 2019). The Court of Criminal Appeals reversed this Court’s decision,
holding that the granting of shock probation does not undermine the validity of a timely
filed notice of appeal from the original conviction. Delafuente, 570 S.W.3d at 729.
Accordingly, this case was remanded to this Court for consideration of appellant’s issues.
Id. at 731.
Both appellant and the State have declined to file new appellate briefs in this
matter. Instead, they rely on the briefs filed on original submission. In his original brief,
appellant contended that: (1) the operative statute in this case—section 38.04 of the Penal
Code—is unconstitutional due to the ambiguity of the term “flee”; (2) the trial court erred
by denying him the right to be heard during voir dire and cross-examination of the State’s
sole witness; and (3) the trial court abused its discretion by denying his motion for new
trial based on the purported unlawful withholding of evidence. Because we overrule all
of appellant’s issues on appeal, we affirm.
I. CONSTITUTIONALITY OF SECTION 38.04 OF THE PENAL CODE
In his first issue, appellant contends that section 38.04 is, on its face,
unconstitutionally vague and overbroad. Appellant also asserts an as-applied challenge
to section 38.04 on appeal. The record reflects that appellant made a single pre-trial
objection to the constitutionality of section 38.04, asserting a facial challenge and that the
Delafuente v. State Page 2
statute is vague and overbroad. Appellant did not assert an as-applied challenge to the
constitutionality of section 38.04 in the trial court.
Constitutional challenges to a statute are generally forfeited by the failure to object
at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see Mendez v.
State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). The constitutionality of a statute as
applied must be raised in the trial court to preserve error. Curry, 910 S.W.2d at 496; see
Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the “well-
established requirement that appellant must preserve an ‘as applied’ constitutional
challenge by raising it at trial”). Further, a defendant may not raise a facial challenge to
the constitutionality of a statute for the first time on appeal. Kareney v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009).
As noted above, appellant did not raise an as-applied challenge to section 38.04 in
the trial court; accordingly, we cannot say that he has preserved this complaint. See Curry,
910 S.W.2d at 496; see also Flores, 245 S.W.3d at 437 n.14. However, because he did assert
a facial challenge to the statute in the trial court, we conclude that his arguments in
support of his facial challenge to the constitutionality of the statute were preserved. See
Kareney, 281 S.W.3d at 434.
With regard to his facial challenge, appellant argues that the statute is overbroad
and vague. “Whether a statute is facially constitutional is a question of law that we
review de novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We presume that
Delafuente v. State Page 3
a statute is valid and that the legislature did not act unreasonably or arbitrarily. Id. at 14-
15. “The burden normally rests upon the person challenging the statute to establish its
unconstitutionality.” Id. at 15. In the absence of contrary evidence, we will presume that
the legislature acted in a constitutionally-sound fashion. Rodriguez v. State, 93 S.W.3d 60,
69 (Tex. Crim. App. 2002). The statute must be upheld if a reasonable construction can
be ascertained that will render the statute constitutional and carry out the legislative
intent. Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.—Fort Worth 2006, pet. ref’d); see
Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979). When an appellant
challenges a statute as both unconstitutionally overbroad and vague, we address the
overbreadth challenge first. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982); Duncantell v. State, 230 S.W.3d
835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
“An overbreadth attack on a statute is recognized only in the context of a First
Amendment challenge.” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth
2008, no pet.) (citing United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697
(1987)); see State v. Johnson, 475 S.W.3d 860, 866 (Tex. Crim. App. 2015) (“And in Secretary
of Maryland v. Joseph H. Munson Co., the United States Supreme Court made it clear that
the overbreadth doctrine is in fact a part of substantive First Amendment law . . . .”
(internal footnote omitted)). Because appellant does not invoke the First Amendment in
this issue, and because he does not explain how the statute could implicate protected
Delafuente v. State Page 4
conduct or speech, we reject appellant’s overbreadth challenge to section 38.04. See
Goyzueta, 266 S.W.3d at 131; see also Johnson, 475 S.W.3d at 866.
In light of the above, the remaining portion of appellant’s first issue is his
argument that section 38.04 is facially unconstitutionally vague. With respect to
vagueness, statutes are not necessarily unconstitutionally vague because the words or
terms employed in the statute are not specifically defined. See Engelking v. State, 750
S.w.2d 213, 215 (Tex. Crim. App. 1988); see Dahl v. State, 707 S.W.2d 694, 700 (Tex. App.—
Austin 1986, pet. ref’d) (“That the statute is confusing is not enough to render it
unconstitutional.”); see also Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987)
(“An enactment is not vague merely because it is imprecise.” (internal citations &
quotations omitted)). When a statute does not define the words used therein, we give the
words their plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999);
see also TEX. GOV’T CODE ANN. § 311.011(a) (West 2013) (“Words and phrases shall be read
in context and construed according to the rules of grammar and common usage.”). A
statute will be invalidated if it fails to give a person of ordinary intelligence a reasonable
opportunity to know what conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496,
499 (Tex. Crim. App. 2006).
Moreover, because appellant makes a facial challenge to the statute, he must prove
that the statute is unconstitutional in every application, and that the statute could never
be constitutionally applied to any defendant under any set of facts or circumstances. See
Delafuente v. State Page 5
State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Santikos v. State, 836 S.W.2d
631, 633 (Tex. Crim. App. 1992). Furthermore, if we determine that there is a reasonable
construction which will render the statute constitutional, we must uphold the statute.
Tarlton v. State, 93 S.W.3d 168, 175 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
Fatal to his facial vagueness challenge, appellant cites to numerous cases—many
of which we cite to—that performed a sufficiency analysis of the evading statute and, as
appellant concedes, “[u]nder such circumstances, the behavior of the accused conforms
with the plain meaning of the word ‘flee’ as that term is defined by the dictionary.” See
Smith v. State, 483 S.W.3d 648, 654-55 (Tex. App.—Houston [14th Dist.] 2015, no pet.);
Reyes v. State, 465 S.W.3d 801, 805-06 (Tex. App.—Eastland 2015, pet. ref’d); Jenkins v.
State, 454 S.W.3d 712, 713-15 (Tex. App.—Corpus Christi 2015, no pet.); see also Blake v.
State, No. 06-11-00097-CR, 2012 Tex. App. LEXIS 926, at **18-21 (Tex. App.—Texarkana
Feb. 2, 2012, pet. ref’d) (mem. op., not designated for publication); Tolbert v. State, No. 08-
10-00096-CR, 2011 Tex. App. LEXIS 6842, at **9-10 (Tex. App.—El Paso Aug. 26, 2011, pet.
ref’d) (mem. op., not designated for publication); Valencia v. State, 13-10-00201-CR, 2011
Tex. App. LEXIS 3815, at **20-22 (Tex. App.—Corpus Christi May 19, 2011, no pet.) (mem.
op., not designated for publication); Holloman v. State, No. 06-10-00113-CR, 2011 Tex. App.
LEXIS 1954, at **5-7 (Tex. App.—Texarkana Mar. 18, 2011, no pet.) (mem. op., not
designated for publication); Garcia v. State, No. 13-07-00566-CR, 2010 Tex. App. LEXIS
826, at **3-6 (Tex. App.—Corpus Christi Feb. 4, 2010, no pet.) (mem. op., not designated
Delafuente v. State Page 6
for publication). This concession demonstrates that there are circumstances in which
section 38.04 can be constitutionally applied and that the term “flee” is not so vague that
it fails to give a person of ordinary intelligence a reasonable opportunity to know what
conduct is prohibited. See Rosseau, 396 S.W.3d at 557; Holcombe, 187 S.W.3d at 499;
Santikos, 836 S.W.2d at 633; see also Tarlton, 93 S.W.3d at 175. Therefore, based on the
foregoing, we reject appellant’s constitutional challenges to section 38.04. See Ex parte Lo,
424 S.W.3d at 14-15. We overrule his first issue.
II. APPELLANT’S RIGHT TO BE HEARD
In his second issue, appellant argues that he was unfairly denied the right to be
heard regarding appellant’s intent. In particular, appellant asserts that his theory of the
case was that his actions did not demonstrate an intent to “flee”; however, the trial court
denied him the opportunity during voir dire and on cross-examination of the State’s sole
witness to explore other viable reasons for appellant’s failure to immediately pull over to
be considered by the jury.
We first address appellant’s complaint about voir dire. Specifically, appellant
argues that he was not allowed to explore the beliefs of the jury regarding the elements
of intent and flight.
The trial court has broad discretion of selecting a jury. Without the trial
court’s ability to impose reasonable limits, voir dire could go on
indefinitely. Thus, we leave to the trial court’s discretion the propriety of a
particular question and will not disturb the trial court’s decision absent an
abuse of discretion. A trial court abuses its discretion when it prohibits a
proper question about a proper area of inquiry. A question is proper if it
Delafuente v. State Page 7
seeks to discover a juror’s views on an issue applicable to the case.
However, an otherwise proper question is impermissible if the question
attempts to commit the juror to a particular verdict based on particular
facts. In addition, a trial judge may prohibit a voir dire question that is so
vague or broad in nature as to constitute a global fishing expedition.
Sells v. State, 121 S.W.3d 748, 755-56 (Tex. Crim. App. 2003) (internal footnotes omitted).
In this case, the State objected that appellant asked the venire improper
commitment questions regarding intent and flight.
A commitment question is one that commits a prospective juror to resolve,
or refrain from resolving, an issue a certain way after learning a particular
fact. See Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). Often
a commitment question requires a “yes” or “no” answer, and the answer
commits the juror to resolve an issue in a particular way. Id. Not all such
questions are improper, however. Id. at 181. Where the law requires a
certain type of commitment from jurors, such as considering the full range
of punishment, an attorney may ask prospective jurors to commit to
following the law in that regard. Id.
Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012); see Standefer, 59 S.W.3d at
182 (“So, the inquiry for improper commitment questions has two steps: (1) Is the
question a commitment question, and (2) Does the question include facts—and only those
facts—that lead to a valid challenge for cause? If the answer to (1) is ‘yes’ and the answer
to (2) is ‘no,’ then the question is an improper commitment question, and the trial court
should not allow the question.”).
In the instant case, the trial court allowed appellant ten pages of voir dire about
intent, and it was not until appellant asked if the officer says, “Stay . . . Jesse leaves the
space . . . [h]is intention is not to run away, hide from the officer. His intention is to get
Delafuente v. State Page 8
somewhere safe . . . [d]o you believe that that is evading?” that the State objected. This
question asked the venire to commit to whether the hypothetical factual situation
involving appellant would constitute evading. This was improper because it attempted
to commit the prospective jurors to a particular verdict based on particular facts. See Sells,
121 S.W.3d at 755-56; Lydia v. State, 109 S.W.3d 495, 499 (Tex. Crim. App. 2003)
(concluding that the question, “Do each of you feel as though you could evaluate a
witness and his testimony and decide if he’s being truthful without automatically
dismissing his testimony because of some criminal history?,” was an improper
commitment question because it asked the jurors to resolve witness credibility, which
was an issue in the case, based on the knowledge that the witness had a criminal history
(particular fact)); Standefer, 59 S.W.3d at 181; see also Wingo v. State, 143 S.W.3d 178, 186
(Tex. App.—San Antonio 2004), aff’d, 189 S.W.3d 270 (Tex. Crim. App. 2006) (concluding
that the question, “Do you believe there’s anything wrong with putting false information
in a police report?,” was an improper commitment question because it committed the
venire regarding culpability based on a specific fact—an officer putting false information
in a police report).
Next, appellant complains about the trial court sustaining the State’s objection
during cross-examination of the State’s lone witness, Officer Kevin Carter of the Lacy
Lakeview Police Department, but formerly of the Waco Police Department. In particular,
the following exchange is the subject of appellant’s complaint:
Delafuente v. State Page 9
[Defense counsel]: In Texas[,] we train officers because just the smell of
alcohol alone—
[Prosecutor]: Judge, I’m going to object at this point to relevance.
We’ve gone over why he didn’t make the DWI arrest.
[Defense counsel] Judge, the issue here—
THE COURT: Sustain the objection. These facts are already before
the jury. He said it wasn’t a DWI investigation. Let’s
ask questions about this trial.
We review the trial court’s admission or exclusion of evidence for an abuse of
discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial
court’s ruling is within the zone of reasonable disagreement, there is no abuse of
discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We consider the
ruling in light of what was before the trial court at the time the ruling was made and
uphold the trial court’s decision if it lies within the zone of reasonable disagreement.
Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).
The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides 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. This
procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380
U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273 S.W.3d
671, 680 (Tex. Crim. App. 2008).
Delafuente v. State Page 10
The Sixth Amendment protects the defendant’s right not only to confront the
witnesses against him, but to cross-examine them as well. See Davis v. Alaska, 415 U.S.
308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 347 (1974). “The exposure of a witness’ motivation
in testifying is a proper and important function of the constitutionally protected right of
cross-examination.” Davis, 415 U.S. at 316-17; 94 S. Ct. at 1110. The accused is entitled to
great latitude to show a witness’ bias or motive to falsify his testimony. See Hodge v. State,
631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).
However, the right of cross-examination is not unlimited. The trial court retains
wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van
Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 674 (1986). The trial court
must carefully consider the probative value of the evidence and weigh it against the risks,
if admitted. See Hodge, 631 S.W.2d at 758. These risks include “the possibility of undue
prejudice, embarrassment or harassment to either a witness or a party, the possibility of
misleading or confusing a jury, and the possibility of undue delay or waste of time.” Id.;
see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); see also Chambers v. State, 866
S.W.2d 9, 27 (Tex. Crim. App. 1993). Moreover, “the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, or to whatever extent, the defense might wish.” Delaware v. Fensterer, 474
U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 15 (1985) (emphasis in original); see Walker v. State,
300 S.W.3d 836, 844-45 (Tex. App.—Fort Worth 2009, pet. ref’d).
Delafuente v. State Page 11
In this case, appellant was not charged with or arrested for driving while
intoxicated; rather, he was charged with evading arrest with a motor vehicle.
Furthermore, there was no dispute regarding the legality of the initial detention in this
case for stopping past the designated stopping point at a stop light. Because appellant
was not investigated for driving while intoxicated, and because Officer Carter
acknowledged that he did not investigate appellant for driving while intoxicated,
questions regarding the training of officers of intoxication offenses are not relevant to
whether appellant evaded arrest with a motor vehicle and, thus, would have caused
undue delay.1 See TEX. R. EVID. 401 (providing that evidence is relevant if it has any
tendency to make more probable or less probable the existence of a consequential fact);
Webb v. State, 991 S.W.2d 408, 418 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (noting
that “[i]f the trial court determines the evidence is irrelevant, the evidence is absolutely
inadmissible and the trial court has no discretion to admit it” and that “[q]uestions of
relevance should be left largely to the trial court and will not be reversed absent an abuse
of discretion”); see also Van Arsdell, 475 U.S. at 678, 106 S. Ct. at 1434-35; Lopez, 18 S.W.3d
at 222; Chambers, 866 S.W.2d at 27. Accordingly, we cannot say that the trial court abused
its discretion in sustaining the State’s objection to this line of questioning. See De La Paz,
279 S.W.3d at 343; Prible, 175 S.W.3d at 731.
1It is worth noting that, prior to the line of questioning complained about by appellant, the
Reporter’s Record reflects more than four pages of cross-examination allowed by the trial court about
driving-while-intoxicated offenses.
Delafuente v. State Page 12
And finally, appellant asserts that the trial court abused its discretion by sustaining
the State’s objection based on speculation to appellant’s question to Officer Carter about
appellant’s arrest. Specifically, appellant complains that the trial court should not have
sustained the State’s objection to the following question: “His intent, therefore, wouldn’t
be to get away from you?” This question required Officer Carter to speculate as to
appellant’s intent and, thus, was impermissible because it was not based on Officer
Carter’s personal knowledge. See Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App.
1997) (“It is impossible for a witness to possess personal knowledge of what someone else
is thinking. The individual is the only one who knows for certain the mental state with
which he is acting. Therefore, if the trial court determines that a proffered lay-witness
opinion is an attempt to communicate the actual subjective mental state of the actor, the
court should exclude the opinion because it could never be based on personal
knowledge.” (emphasis in original) (internal citations omitted)). We therefore cannot
conclude that the trial court abused its discretion in sustaining the State’s objection to this
question. See id. And based on the foregoing, we overrule appellant’s second issue.
III. APPELLANT’S MOTION FOR NEW TRIAL
In his third issue, appellant complains that the trial court abused its discretion by
denying his motion for new trial based on the alleged unlawful withholding of evidence
that purportedly showed that Officer Carter was previously terminated from the Waco
Delafuente v. State Page 13
Police Department for conduct which was allegedly similar to some of the facts of this
offense.
We review a trial court’s ruling on a motion for new trial under an abuse-of-
discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). In
conducting our review, we view the evidence in the light most favorable to the trial
court’s ruling and uphold the ruling if it is within the zone of reasonable disagreement.
Id. (citing 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.” Id. “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.” Id. (citing Charles v. State, 146 S.W.3d 204, 208 (Tex.
Crim. App. 2004)).
The authority which provides many of the grounds for which a trial court must
grant a new trial are listed in Texas Rule of Appellate Procedure 21.3. See TEX. R. APP. P.
21.3; see also State v. Barragan, 421 S.W.3d 16, 18 (Tex. App.—Waco 2013, pet. ref’d).
However, Rule 21.3 is not an all-inclusive list. See State v. Herndon, 215 S.W.3d 901, 907
(Tex. Crim. App. 2007); State v. Evans, 843 S.W.2d 576, 578-79 (Tex. Crim. App. 1992).
Historically, we have consistently held that a trial judge has the authority
to grant a new trial “in the interest of justice” and that his decision to grant
or deny a defendant’s motion for new trial is reviewed only for an abuse of
discretion. That discretion is not, however, unbounded or unfettered. A
trial judge has discretion to grant or deny a motion for new trial “in the
interest of justice,” but “justice” means in accordance with the law.
Delafuente v. State Page 14
...
While a trial court has wide discretion in ruling on a motion for new trial
which sets out a valid legal claim, it should exercise that discretion by
balancing a defendant’s “interest of justice” claim against both the interests
of the public in finality and the harmless-error standards set out in Rule
44.2. Trial courts should not grant a new trial if the defendant’s substantial
rights were not affected. Otherwise, the phase “interest of justice” would
have no substantive legal content, but constitute a mere platitude covering
a multitude of unreviewable rulings.
Herndon, 215 S.W.3d at 907-08; see State v. Thomas, 428 S.W.3d 99, 105 (Tex. Crim. App.
2014) (“There must be some legal basis underpinning the grant of a new trial, even if it is
granted in the interest of justice.”).
On appeal, appellant argues that the trial court abused its discretion by denying
his motion for new trial based on purported violations of Article 39.14 of the Code of
Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963). See TEX. CODE CRIM. PROC. ANN. art. 39.14 (West Supp. 2017). Specifically,
appellant contends that the State failed to disclose evidence of Officer Carter being
stopped by law enforcement and being terminated by the Waco Police Department due
to the stop. Appellant further argues that the alleged evidence could have been used to
impeach Officer Carter’s testimony.2
2 In support of this issue, appellant directs us to an affidavit executed by his appellate counsel that
describes the purported stop of Officer Carter for the suspicion of driving while intoxicated. In this
affidavit, counsel does not specifically mention the source of the information for the purported stop of
Officer Carter. Rather, regarding the source of the information, counsel merely stated that: “After the
verdict was rendered, defense investigation revealed that the sole witness for the state, Officer Kevin
Delafuente v. State Page 15
We first address appellant’s complaints under Article 39.14 of the Code of
Criminal Procedure. This Court has previously stated the following regarding Article
39.14 complaints:
For many years, criminal defendants have been entitled to limited
discovery under Article 39.14 of the Texas Code of Criminal Procedure in
addition to, and independent of, the constitutional right of access to
exculpatory evidence explained in Brady v. Maryland. Kinnamon v. State, 791
S.W.2d 84, 91 (Tex. Crim. App. 1990), overruled on other grounds by Cook v.
State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994) (citing Brady v. Maryland,
373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Until 2014, Texas law
required the defendant to file a motion and on the hearing thereof to show
good cause to the trial court for the discovery of evidence from the State.
However, the passage of the Michael Morton Act amended Article 39.14(a)
to require that the State, upon a request of the defendant, produce
“designated books, accounts, letters, photographs, or objects or other
tangible things not otherwise privileged that constitute or contain evidence
material to any matter involved in the action and that are in the possession,
custody, or control of the state or any person under contract with the state.”
TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West Supp. 2018) (emphasis
added).
...
[T]o establish that requested evidence is material, it is necessary that a
defendant must provide more than a possibility that it would help the
defense or affect the trial. See Branum v. State, 535 S.W.3d 217, 224-25 (Tex.
App.—Fort Worth 2017, no pet.). Evidence must be “indispensable to the
State’s case” or must provide a reasonable probability that its production
would result in a different outcome to be considered material and subject
to mandatory disclosure under Article 39.14(a). Branum, 535 S.W.3d at 225;
see Ehrke v. State, 459 S.W.3d 606, 611 (Tex. Crim. App. 2015) (Evidence is
material if it affects the essential proof that the defendant committed the
offense charged.); Quinones v. State, 592 S.W.2d 933, 941 (Tex. Crim. App.
1980).
Carter, was previously stopped, and detained by members of law enforcement under suspicion of Driving
While Intoxicated.”
Delafuente v. State Page 16
Carrera v. State, 554 S.W.3d 800, 801-02 (Tex. App.—Waco 2018, no pet.).
Nothing in the record indicates that the traffic stop of Officer Carter resulted in an
arrest or conviction. Indeed, in an affidavit, appellant’s trial counsel acknowledged that:
“Rather than arrest him [Officer Carter], law enforcement made the decision to allow him
to park his vehicle and receive a ride home.” Because this incident did not result in a
conviction, it was not admissible at trial and, thus, was not material to the case. See TEX.
R. EVID. 608(b), 609; TEX. CODE CRIM. PROC. ANN. art. 39.14(a); see also Dalbosco v. State, 978
S.W.2d 236, 238 (Tex. App.—Texarkana 1998, pet. ref’d) (“Specific instances of conduct of
a witness in order to attack his credibility, other than a conviction of a crime as provided
for in Rule 609, may not be inquired into on cross-examination of the witness, nor proved
by extrinsic evidence.”). Furthermore, given the inadmissibility of the complained-of
evidence, it cannot be said that the evidence was indispensable to the State’s case or
provided a reasonable probability that its production would result in a different outcome,
especially because the entirety of the offense was captured on video and was played for
the jury, the facts of the case were not disputed, and because Officer Carter’s credibility
was not challenged in the case. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h) (providing
that the State “shall disclose to the defendant any exculpatory, impeachment, or
mitigating document, item, or information in the possession, custody, or control of the
state that tends to negate the guilt of the defendant or would tend to reduce the
Delafuente v. State Page 17
punishment for the offense charged”); see also Ehrke, 459 S.W.3d at 611; Quinones, 592
S.W.2d at 941; Carrera, 554 S.W.3d at 801-02; Branum, 535 S.W.3d at 225.
Next, we address appellant’s Brady complaint, which mirrors the contention he
made in reference to Article 39.14 of the Code of Criminal Procedure. Brady requires the
prosecution to disclose evidence that is favorable to the accused when that evidence is
material to guilt or punishment. See 373 U.S. at 87, 83 S. Ct. at 1196-97. To establish a
Brady violation, appellant must demonstrate that: (1) the State failed to disclose evidence,
regardless of the prosecution’s good or bad faith; (2) the withheld evidence is favorable
to the defendant; and (3) the evidence is material. See Ex parte Miles, 359 S.W.3d 647, 655
(Tex. Crim. App. 2012); see also Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006)
(internal citations omitted). “Incorporated into the third prong, materiality, is a
requirement that defendant must be prejudiced by the state’s failure to disclose the
favorable evidence.” Harm, 183 S.W.3d at 406 (internal citation omitted). “Additionally,
we require that the evidence central to the Brady claim be admissible in court.” Ex parte
Miles, 359 S.W.3d at 665 (citing Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993)).
As mentioned above, the complained-of evidence did not result in a conviction
and, thus, under Texas Rules of Evidence 608 and 609, would not be admissible at trial.
See TEX. R. EVID. 608, 609; see also Dalbosco, 978 S.W.2d at 238. As such, “[a] prosecutor
does not have a duty to turn over evidence that would be inadmissible at trial.” Ex parte
Kimes, 872 S.W.2d at 703. Furthermore, it cannot be said that the complained-of evidence
Delafuente v. State Page 18
is material because the entirety of appellant’s offense was captured on video and was
played for the jury, the facts of appellant’s case were not disputed, and because Officer
Carter’s credibility was not challenged in the case. Accordingly, we do not find a Brady
violation with regard to the complained-of evidence. See Brady, 373 U.S. at 87, 83 S. Ct. at
1196-97; Ex parte Miles, 359 S.W.3d at 665; Ex parte Kimes, 872 S.W.2d at 703; Dalbosco, 978
S.W.2d at 238; see also TEX. R. EVID. 608, 609. Therefore, given the above, we cannot say
that the trial court abused its discretion by denying appellant’s motion for new trial. See
Webb, 232 S.W.3d at 112. We overrule his third issue.
IV. CONCLUSION
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed October 23, 2019
Do not publish
[CR25]
*(Chief Justice Gray concurs in the Court’s judgment which affirms the trial court’s
judgment. A separate opinion will not be issued.)
Delafuente v. State Page 19