Demetrie Trevail Dixon v. State ( 2012 )

Opinion issued June 28, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00442-CR
NO. 01-11-00443-CR
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DEMETRIE TREVAIL DIXON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case Nos. 1265635 and 1265636
MEMORANDUM OPINION
A jury convicted Demetrie Trevail Dixon of two counts of sexual assault and
assessed punishment at six years’ confinement for each count, with the sentences
to run concurrently.1 In three issues on appeal, Dixon contends that the trial court
erred during the guilt phase of trial by (1) admitting scientific testimony that was
not reliable or proffered by a qualified expert, (2) admitting “victim character”
evidence, and (3) denying his motion for new trial based on the State’s violation of
his due process rights in failing to disclose favorable evidence.
Background
The north-central area of Houston is the Houston Police Department’s
largest patrol area and is “known to have a high concentration of prostitution
activity[.]” Dixon worked as a patrol officer during the night shift in the north-
central area; specifically, he patrolled an area that included Antoine Street, West
34th Street, Mangum Street, and Dacoma Street in a marked patrol car between the
hours of 11:00 p.m. and 7:00 a.m. As a patrol officer, Dixon’s ordinary job
responsibilities included answering service calls and maintaining a visible police
presence. His ordinary job responsibilities did not include investigation of
prostitution or participation in other vice activities.
Captain V. Rodriguez, a twenty-six-year veteran of the HPD, commands
patrol of the north-central area. In the spring of 2010, another officer complained
to Rodriguez about ongoing police misconduct towards women in the north central
area. Rodriguez conducted a preliminary investigation and identified Dixon as a
1
See TEX. PENAL CODE ANN. § 22.011 (West 2011).
2
suspect. Rodriguez referred the matter to HPD’s internal affairs division, and that
division—led by Sergeant D.M. Chambers—began an investigation. By canvasing
Dixon’s patrol area for information, Chambers learned of a potential sexual assault
victim—a prostitute who went by the name of “Fifi.” Chambers eventually located
“Fifi” in a county jail facility. When he asked her if she knew of any police
misconduct, she started to cry. “Fifi,” hereinafter the “complainant,” told the
officers that she had been sexually assaulted by an on-duty patrol officer twice—
once on March 15, 2010 and again on April 25, 2010. She stated that the sexual
assaults took place in the early morning hours near industrial warehouses in the
north-central area. In a photo array, she identified Dixon as her assailant.
Chambers verified that Dixon was on duty on March 15th and April 25th.
Like all other HPD patrol cars, Dixon’s patrol car included mobile data terminal
(MDT) and automatic vehicle locator (AVL) technology. The MDT is a computer
by which officers make reports, acquire information, and communicate. The AVL
is “basically a GPS device that tracks the [patrol] vehicles.” Chambers requested
the data generated by both systems for Dixon’s patrol car. He also conducted
undercover surveillance of Dixon on patrol. During that surveillance, the internal
affairs team observed Dixon park his patrol car, turn off the patrol car lights, and
get out of the patrol car in a dark industrial warehouse area like the one described
3
by the complainant. Finding Dixon’s behavior suspicious, Chambers and the
internal affairs division intervened and brought Dixon in for questioning.
A grand jury indicted Dixon on two counts of sexual assault—one count for
the March 15th incident and one count for the April 25th incident—and the case
proceeded to trial. During the guilt phase of the trial, the complainant described her
history of drug addiction and prostitution. She testified that she withdrew from
high school and began smoking marijuana and drinking at a young age. When her
parents divorced, she stayed with her father. From him, she learned to smoke crack
cocaine at the age of fourteen or fifteen, and she sometimes purchased the drugs
they smoked together. Her father’s friends introduced her to the “dope dealers.” On
one drug run, her father’s friends abandoned her in the area where they bought
drugs. Having no way to contact her father or to get home, the complainant stayed
in that area by herself for four to five months. She slept in various homes and
motel rooms, and she used crack cocaine daily. The complainant began working as
a prostitute at the age of fifteen to finance her drug habit.
The complainant also testified about the events giving rise to the charges
against Dixon. Around the time of the sexual assaults, she worked as a prostitute in
the north-central area of town. She used drugs four to five times per day. She
always took her customers to hotels as a safety precaution; she never agreed to
perform sexual acts in her customers’ cars. The locations from which she solicited
4
customers included a Texaco gas station on 34th Street and Antoine Street. The
complainant admitted that she engaged in illegal activity by abusing drugs and
performing sexual acts for a fee and that she had been arrested on multiple
occasions—although never by Dixon. She described her relationship with the
patrol officers in the area as friendly, and due to her numerous encounters with
police, she was familiar with arrest procedures.
On March 15th—the date of the first sexual assault—the complainant was
staying at a friend’s apartment off 34th Street. Around 5:00 a.m., she left the
apartment with another friend. They stopped at a Jack-in-the-Box for breakfast,
and were some of the restaurant’s first customers when it opened at 6:00 a.m. The
complainant’s plan for the remainder of the day was to “eat, clean up, take [the
friend with whom she stayed] something to eat, get high and go to work.” When
she left the Jack-in-the-Box, she began walking down 34th Street toward the
apartment. A uniformed police officer in a marked patrol car stopped her near the
Circle P convenience store located between the Jack-in-the-Box and the apartment.
At the time, she did not have any crack cocaine on her person, and she was not
soliciting customers or engaged in other illegal activity. The officer asked if she
had ever been arrested and instructed her to tell her friend to go home. The officer
then exited the patrol car, grabbed her by the arm, and told her to get into the car.
5
When he did not “pat her down” before putting her in the patrol car, she “knew
something wasn’t right.”
The officer drove behind the Circle P store and parked the patrol car
between the warehouses located nearby. It was still dark outside. The officer asked
for and ran the complainant’s name on his computer. He turned the patrol car lights
off, got out of the patrol car, and approached the back door. He instructed the
complainant to get out the car so that he could search her. When she requested that
a female officer perform the search, the officer instructed her to take all of her
clothing off. She complied. He then sexually assaulted her.
With respect to the sexual assault on April 25th, the complainant testified
that she was working from a bus stop outside the Texaco gas station on 34th Street
and Antoine Street when a uniformed police officer parked his patrol car in the
parking lot behind the bus stop. She immediately recognized the officer as the man
who assaulted her on March 15th. Because it was in the early morning hours, it
was dark outside and there was no traffic. The officer asked the complainant if she
was “ready to get this over with or go to jail[.]” Because he was in uniform, the
complainant did not feel free to ignore him or run. The officer again grabbed her
arm and placed her in the back of the patrol car. He did not notify dispatch that he
had a female passenger in the car or ask for a female officer to join him at the
scene. Again, the officer drove her to an industrial warehouse area; this time, he
6
parked his patrol car in front of an abandoned school bus. The officer removed the
complainant from the patrol car and sexually assaulted her for the second time. The
officer then drove the complainant back to the Texaco station.
The complainant identified Dixon as her assailant in court. The complainant
denied that she had consented to any of the sex acts forced upon her by Dixon. She
informed the jury that she had not received anything from the prosecution in
exchange for her testimony.
To corroborate the complainant’s story, the State presented the testimony of
several law enforcement officials. The jury heard testimony from both Rodriguez
and Chambers regarding ordinary police procedures. They informed the jury that
patrol officers should not detain a person without probable cause or transport a
person to a different location before performing a weapons search or running a
name check for outstanding warrants. A male officer should not perform a pat-
down or contraband search of a female suspect, and strip searches are never
performed in public. Special procedures apply when a male officer transports a
female passenger—the officer should inform dispatch that he has a female
passenger, that he is leaving a specific location, and that he is traveling to a
specific location. Dispatch then tracks the time at which the officer departs and
arrives with the female passenger. According to the complainant’s testimony,
Dixon did not follow any of these procedures.
7
The State also presented the testimony of G. Jordan, a chief fraud examiner
with the Harris County District Attorney’s public integrity division. Jordan
analyzed the MDT records from Dixon’s patrol vehicle by searching for entries
using the complainant’s name. His search revealed that, at 6:07 a.m. on March
15th, Dixon conducted a “person check” from his patrol car using the
complainant’s name.
Sergeant R. Cruz, another internal affairs officer, also testified regarding the
investigation of Dixon’s crimes. Over Dixon’s objection, Cruz testified that he
collected and reviewed the AVL data from Dixon’s patrol car to determine Dixon’s
location on the dates and times of the sexual assaults. Specifically, Cruz converted
the physical addresses provided by the complainant into latitude and longitude
coordinates. Searching within a 200-foot radius of the coordinates, he generated a
list of the patrol cars that traveled through the areas around the time the sexual
assaults occurred. Because this list included Dixon, Cruz retrieved the AVL data
specific to Dixon’s patrol car. The AVL data provided dates, times, unit
information, longitude and latitude coordinates, directional information, and
velocity. Cruz plotted the data for March 15th, between the hours of 5:58:26 a.m.
to 6:30:45 a.m., and April 25th, between the hours of 1:46:17 a.m. to 2:16:15 a.m,
on a map. Using the map, he gave testimony regarding the routes traveled by
Dixon on the dates of the sexual assaults. He concluded that, consistent with the
8
complainant’s story, Dixon parked his patrol vehicle in an industrial warehouse
area near the Circle P on 34th Street for twenty-eight minutes on the morning of
March 15th and near an abandoned school bus for twelve minutes on the morning
of April 25th.
Cruz further stated, without objection, that he personally visited the two
locations where the complainant alleged the sexual assaults occurred. He found the
condition of the areas to be consistent with the complainant’s description. He
described the industrial warehouse area behind the Circle P as being dimly-lit and
not visible to passing traffic. Regarding the industrial warehouse area near the
abandoned school bus, Cruz testified that a vehicle parked in front of the school
bus would not be visible to passing traffic.
After considering the evidence presented by the State and the arguments of
counsel, the jury found Dixon guilty on both counts of sexual assault and assessed
his punishment at six years’ confinement. This appeal followed.
Admission of Evidence
I. Scientific Evidence
In his first issue, Dixon contends that the trial court erroneously admitted
scientific evidence, specifically the AVL data showing the location of Dixon’s
patrol vehicle on the date and time the complainant was sexually assaulted. Dixon
argues, first, that the AVL data was unreliable in assisting the jury to determine a
9
fact in issue—namely, whether Dixon was at the place where the complainant was
sexually assaulted for a length of time sufficient to commit the offense—and
second, that Cruz was not qualified to give the testimony.
Whether to admit scientific evidence is a decision within the trial court’s
discretion. See Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009);
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Such decisions
will rarely be disturbed by an appellate court. Vela v. State, 209 S.W.3d 128, 136
(Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527−28 n.9 (Tex.
Crim. App. 2006). As with other types of evidentiary rulings, we will uphold the
trial court’s decision unless it lies outside the zone of reasonable disagreement.
Layton, 280 S.W.3d at 240. If the record supports the trial court’s decision on the
admission of evidence, there is no abuse of discretion. Osbourn v. State, 92 S.W.3d
531, 537 (Tex. Crim. App. 2002).
A. Reliability
To preserve an argument that the AVL data was unreliable, the record must
show that the party made a specific objection on the record and received an
adverse ruling on that objection. See TEX. R. APP. P. 33.1(a); Turner v. State, 805
S.W.2d 423, 431 (Tex. Crim. App. 1991). To make a specific objection, a party
must “let the trial judge know what he wants, why he thinks himself entitled to it,
and . . . do so clearly enough for the judge to understand him at a time when the
10
trial court is in a proper position to do something about it.” Lankston v. State, 827
S.W.2d 907, 909 (Tex. Crim. App. 1992). Notwithstanding a party’s failure to
make a specific objection, error will be preserved if a specific objection was
apparent from the context. See TEX. R. APP. P. 33.1(a)(1)(A); see also TEX. R.
EVID. 103(a)(1).
A party may challenge expert testimony on at least three specific grounds:
(1) the witness does not qualify as an expert because the witness lacks the requisite
knowledge, skills, experience, training, or education in the subject matter of the
testimony; (2) the subject matter of the testimony is inappropriate because it is
unreliable; or (3) the testimony will not assist the factfinder in deciding the case.
See Vela, 209 S.W.3d at 131, 133−34; Kelly v. State, 824 S.W.2d 568, 573 (Tex.
Crim. App. 1992); see also TEX. R. EVID. 401, 702, 705(c). Respectively, these
criteria are commonly referred to as “qualification,” “reliability,” and “relevance.”
Vela, 209 S.W.3d at 131. They raise distinct inquiries, and an objection based on
one of the criteria does not preserve error as to another. See id. (stating that
qualifications of expert witness are “distinct from reliability and relevance and,
therefore, should be evaluated independently”); Turner v. State, 252 S.W.3d 571,
584 n.5 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that objection
based on expert’s qualifications did not preserve reliability issue).
11
Here, in anticipation of Cruz’s testimony about the AVL data, Dixon
requested leave to voir dire Cruz on the ground that he lacked “the background
necessary to qualify him as an expert on that scientific testimony[.]” During voir
dire, Dixon inquired primarily about Cruz’s qualifications—asking whether Cruz
had a “college degree in anything scientific” or had attended classes regarding the
collection or analysis of AVL data; whether he understood the “computer or the
algorithms or any of the mathematic bases” for the AVL data or had spoken with
the AVL programmers about how that data is collected; and whether he understood
the rate of error in the data collected. Although Dixon asked whether Cruz had
“any idea about the scientific reliability in terms of reviewing studies for how
accurate [the AVL system’s] latitude and longitude findings are,” that question
sought information about whether Cruz had the requisite knowledge to give an
opinion on the AVL data rather than the reliability of the data itself. At the end of
voir dire, Dixon made this objection:
[W]e would lodge a 702 objection that this witness is not qualified to
offer and have admitted the evidence of the AVL because he has no
understanding and reliance of accuracy. The 702 predicate, while not
exhaustive, is clearly clear that there ha[s] to be some sort of
foundation for his reliance on the evidence that he’s putting forth
before the jury.[2]
2
Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
12
He then referred the trial court to a number of cases addressing the qualification of
expert witnesses before reasserting his position that Cruz was “not an expert.”3
Nowhere in the record do we find an objection that Cruz’s testimony on the
AVL data should be excluded because the data he sought to introduce was
unreliable. Dixon renewed his voir dire objection when Cruz testified before the
jury, and the context provided by the voir dire does not suggest that Dixon objected
to reliability of the data as well as to Cruz’s qualifications to offer an opinion
interpreting the AVL data. Absent such an objection, any question about the
reliability of the AVL data is not preserved for our review. See TEX. R. APP. P.
33.1; Turner, 252 S.W.3d at 584 n.5.
experience, training, or education may testify thereto in the form of
an opinion or otherwise.
TEX. R. EVID. 702.
3
Specifically, Dixon sought to highlight Cruz’s lack of qualification by comparing
his knowledge and experience to a civil engineer who explained how a GPS-based
system worked in McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138
S.W.3d 24 (Tex. App—San Antonio 2004, no pet.); a police officer who had a
college in degree in geography and could explain GPS technology in Brown v.
State, 163 S.W.3d 818 (Tex. App.—Dallas 2005, pet. ref’d); a police officer
having more than sixty hours of training who testified about blood-spatter and
blood-stain evidence in Wilson v. State, 195 S.W.3d 193 (Tex. App.—San Antonio
2006, no pet.); and a police officer holding a certification in horizontal gaze
nystagmus testing in Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).
Dixon did not make any assertion in the trial court that these cases were persuasive
on the issue of the reliability of the AVL data.
13
B. Qualifications
Dixon next contends that Cruz lacked the knowledge, education, and
training to qualify him as an expert on the interpretation of AVL data. Dixon points
out that, according to Cruz’s own testimony, he had only two hours of formal
training on the AVL system; he did not have a college degree in any scientific
field; he did not understand the science underlying the AVL system or know the
system’s rate of error; and other than the system manual, he had not read any
literature on the subject. The State responds that Cruz “was a fact witness, not an
expert witness. His testimony was not based on any technical or specialized
knowledge of the inner-workings of the [AVL] system”; instead, he testified
“based on his role in the investigation . . . and as the custodian of the AVL
records.” For our analysis here, we assume expert testimony was required to assist
the jury in understanding the AVL data.
“Qualification is a two-step inquiry. A witness must first have a sufficient
background in a particular field, and a trial judge must then determine whether that
background goes to the matter on which the witness is to give an opinion.” Davis v.
State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010). There is no rigid formula for
determining whether an expert is qualified to testify. “Because the spectrum of
education, skill, and training is so wide, a trial court has great discretion in
determining whether a witness possesses appropriate qualifications as an expert on
14
a specific topic in a particular case.” Id. The focus is on the “fit” between the
subject matter of the testimony and the expert’s familiarity with that subject matter.
Vela, 209 S.W.3d at 133.
To give appellate courts some guidance in determining whether a trial court
abused its discretion in ruling on an expert’s qualifications, the Court of Criminal
Appeals has set forth three criteria: (1) “[I]s the field of expertise complex?”; (2)
“[H]ow conclusive is the expert’s opinion?”; and (3) “[H]ow central is the area of
expertise to the resolution of the lawsuit?” Rodgers v. State, 205 S.W.3d 525, 528
(Tex. Crim. App. 2006). The Court explained these criteria:
First, is the field of expertise complex? The degree of education,
training, or experience that a witness should have before he can
qualify as an expert is directly related to the complexity of the field
about which he proposes to testify. If the expert evidence is close to
the jury’s common understanding, the witness’s qualifications are less
important than when the evidence is well outside the jury’s own
experience. For example, DNA profiling is scientifically complex;
latent-print comparison (whether of fingerprints, tires, or shoes) is not.
Second, how conclusive is the expert’s opinion? The more conclusive
the expert’s opinion, the more important is his degree of expertise.
Testimony that “a given profile occurred one time in 2.578 sextillion
(2.578 followed by 21 zeroes), a number larger than the number of
known stars in the universe (estimated at one sextillion)” requires a
much higher degree of scientific expertise than testimony “that the
defendant’s tennis shoe could have made the bloody shoe print found
on a piece of paper in the victim’s apartment.” And third, how central
is the area of expertise to the resolution of the lawsuit? The more
dispositive it is of the disputed issues, the more important the expert’s
qualifications are. If DNA is the only thing tying the defendant to the
crime, the reliability of the expertise and the witness’s qualifications
to give his opinion are more crucial than if eyewitnesses and a
confession also connect the defendant to the crime.
15
Id.; see Davis, 313 S.W.3d at 350.
Following Rodgers, we first consider the complexity of the field of expertise
serving as the basis for Cruz’s testimony. Cruz explained that the AVL system is
GPS-based. Through satellite transmission, devices installed in patrol cars send
latitude and longitude coordinates to a computer maintained by HPD. The AVL
data interpreted by Cruz consisted of computer-generated spreadsheets, listing the
date and time, the patrol car “unit information,” its latitude and longitude
coordinates, its “GPS azimuth” (meaning direction), and its velocity. Although the
science underlying the compilation of this data is technically complex, the process
by which Cruz interpreted the data was not. As part of the internal affairs
investigation, Cruz converted the physical addresses provided by the complainant
into latitude and longitude coordinates. Using the dates and times of the
complainant’s sexual assault, Cruz retrieved the AVL data within a 200 foot radius
of those coordinates in order to “pick up” the patrol cars that traveled through the
area. Because the search “picked up” Dixon, Cruz then retrieved the AVL data
specific to Dixon’s patrol car and plotted its longitude and latitude coordinates on
the dates and times of the sexual assaults on a map. Cruz also informed the jury of
the periods of time during which the AVL system reported Dixon’s patrol car as
having a zero velocity, and he opined that, during those periods, Dixon’s patrol car
was parked. Cruz’s analysis was thus straightforward, relatively simple, and likely
16
not far from the jurors’ common understanding of GPS-based technology.
Consequently, the required degree of education, training, and experience was not
high. See Rodgers, 205 S.W.3d at 528.
Dixon did not challenge the business records that recorded Dixon’s AVL
data. A person may lack expertise in how a piece of equipment operates but be
qualified to interpret the data the equipment collects (i.e., like a cardiologist who
interprets an EKG). Cruz’s qualifications—more than sixteen years’ experience as
a police officer, a two-hour course on the use of the AVL system, a full reading of
the system manual, and his daily performance and use of AVL data analysis as a
member of HPD’s internal affairs division conducting surveillance of police
officers—sufficed to render his testimony helpful to the jury in understanding the
evidence. See TEX. R. EVID. 702; see also Kelly, 824 S.W.2d at 572.
With respect to Rodgers’s second and third prongs, we conclude that Cruz’s
testimony was neither conclusive nor dispositive. Cruz’s testimony established that
Dixon’s patrol vehicle was in the locations described by the complainant on the
dates and at the times she said the sexual assaults occurred. While this evidence
connects Dixon to the complainant, it does not, by itself, conclusively connect
Dixon to the sexual assaults. Cruz did not mislead the jury that his analysis was
beyond a risk of error. On cross-examination, he acknowledged that he determined
the location of Dixon’s patrol car based exclusively on computer-generated data,
17
that he did not know rate of error for the data, and that, if the system generated bad
data, his analysis might also be bad. Moreover, the jury heard other evidence
corroborating the complainant’s testimony, including unobjected-to testimony that
Dixon was on duty on March 15th and April 25th, that he conducted a “person
check” using the complainant’s name on March 15th, and that Cruz personally
observed the locations where the sexual assaults occurred and found they fit the
complainant’s description. The jury also witnessed the complainant’s in-court
identification of Dixon as her assailant and heard her detailed testimony regarding
the sexual assaults.
After considering the Rodgers criteria on these facts, we conclude that the
trial court’s decision to admit Cruz’s testimony was within the zone of reasonable
disagreement. See Bryant v. State, 340 S.W.3d 1, 7 (Tex. App.—Houston [1st
Dist.] 2010, pet. ref’d) (observing that trial court’s determination of witness
qualifications is given great deference). We overrule Dixon’s first issue.
II. “Victim Character” Evidence
During opening statements, the State told the jurors what they would learn
about the complainant during the guilt phase of trial:
[P]robably one of the worst points of her life as a child is when her
father taught her how to smoke crack cocaine. You’re going to hear
how [the complainant] became the person who was handed money
from her father, who’s sent with a friend of her father who had a car
into the Third Ward in Houston to purchase crack cocaine.
18
Dixon objected to the relevance of the State’s remarks, and the trial court overruled
the objection. Later, after eliciting testimony from the complainant that she began
using crack cocaine at a young age, the State asked her “[w]ho would obtain the
crack?” Dixon made a second objection to relevance. After the trial court overruled
the objection, the complainant answered that she purchased the drug for her father.
In his third issue, Dixon argues that the trial court erroneously overruled his
relevance objections because the complainant’s testimony did not have a tendency
to make a fact of consequence more or less likely but, instead, “placed a horrible
image in the minds of the jurors [of] a little girl being taught to smoke crack by her
father, a little girl who is then left in a crack neighborhood to become a prostitute.”
Regardless of whether the trial court erred by allowing the complainant to
testify that she purchased crack cocaine as a child, that testimony is cumulative of
other efforts made by the State to portray the complainant as a victim. “Overruling
an objection to evidence will not result in reversal when other such evidence was
received without objection, either before or after the complained-of ruling.”
Johnson v. State, No. 01-10-00314-CR, 2011 WL 1753209, at *2 (Tex. App.—
Houston [1st Dist.] May 5, 2011, pet. ref’d) (citing Leday v. State, 983 S.W.2d
713, 718 (Tex. Crim. App. 1998)). Before Dixon objected to relevance, the
complainant had already testified that she learned to smoke crack cocaine while
living with her father at the age of fourteen or fifteen and that she and her father
19
used the drug together. And, after the trial court overruled Dixon’s objection, the
complainant testified without further objection that her father’s friends introduced
her to “dope dealers” and eventually abandoned her in the area where they bought
drugs. Having no way to contact her father or to get home, the complainant stayed
in that area by herself for four to five months; according to her, she “just kind of
got stuck . . . and it was, like, a cycle[.]” She slept in various homes and motel
rooms, where she used crack cocaine daily. To finance her drug habit, the
complainant began working as a prostitute at the age of fifteen. Thus, any error in
the admission of the complainant’s testimony that she purchased drugs for her
father was harmless because the record contains other evidence of her history of
drug abuse and prostitution as a child. See Leday, 983 S.W.2d at 718; Johnson,
2011 WL 1753209, at *2.
We hold that Dixon has not shown reversible error in the admission of the
evidence at trial, and we overrule his third issue.
Brady Violation
In his second issue, Dixon contends the State withheld exculpatory
information in violation of his due process rights and Brady v. Maryland, 373 U.S.
83, 87, 83 S. Ct. 1194, 1196−97 (1963). Specifically, he maintains that the State
was obligated to disclose the opinion of an expert whose testimony in an unrelated
case contradicted Cruz’s testimony regarding the reliability and accuracy of the
20
AVL data as a means of tracking patrol car movement. Dixon raised this issue in
his motion for new trial, which was overruled by operation of law. We review the
trial court’s ruling on the motion for new trial for abuse of discretion, and we must
uphold the trial court’s ruling if that ruling was within the zone of reasonable
disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). The
trial court abused its discretion in denying the motion for new trial only if no
reasonable view of the record could support the denial of relief. See Charles v.
State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
The State complains that Dixon has not complied with the rules governing
the presentment of a new trial motion and the consideration of evidence outside the
record of a trial. Dixon replies that the clerk’s record could be supplemented to
include a docket sheet entry establishing presentment of his motion and an
agreement between the parties that the trial court would decide whether to grant a
new trial based on the parties’ written submissions and without a hearing. We also
note that Dixon has not provided us with any authority on whether Brady requires
the State to disclose expert testimony given in another, unrelated case that could be
used for impeachment. Even assuming the clerk’s record could be supplemented to
include the documents alleged by Dixon and that Brady applies, Dixon has not
established a violation of his rights.
21
In Brady, the United States Supreme Court held that the suppression of
evidence favorable to a defendant violates his due process rights if the evidence is
material either to guilt or punishment, without regard to the good or bad faith of
the prosecution. Brady, 373 U.S. at 87, 83 S. Ct. at 1196−97; see Wyatt v. State, 23
S.W.3d 18, 27 (Tex. Crim. App. 2000). To establish a Brady violation, Dixon must
show: (1) the State suppressed evidence; (2) the suppressed evidence is favorable
to him; and (3) the suppressed evidence is material. Hampton v. State, 86 S.W.3d
603, 612 (Tex. Crim. App. 2002).
Materiality, incorporated into Brady’s third prong, is a requirement that
Dixon must be prejudiced by the State’s failure to disclose the favorable evidence.
Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 1272 (2004). “The mere
possibility that an item of undisclosed information might have helped the defense,
or might have affected the outcome of the trial, does not establish ‘materiality’ in
the constitutional sense” contemplated by Brady. Hampton, 86 S.W.3d at 612
(quoting United States v. Agurs, 427 U.S. 97, 109−10, 96 S. Ct. 2392, 2400
(1976)). Evidence is not material if it is of such a nature that the defendant could
“obtain comparable evidence by other reasonably available means.” California v.
Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534 (1984). Instead, “evidence is
material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A
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‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383
(1985); see Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992);
Lempar v. State, 191 S.W.3d 230, 241 (Tex. App.—San Antonio 2005, pet. ref’d)
(citing Ex Parte Richardson, 70 S.W.3d 865, 870 n.22 (Tex. Crim. App. 2002)).
Given this standard, the materiality of Brady evidence thus “depends almost
entirely on the value of the evidence relative to the other evidence mustered by the
State.” Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990); see also Allridge v. Scott,
41 F.3d 213, 218 (5th Cir. 1994) (holding that when undisclosed evidence is
merely cumulative of other evidence, no Brady violation occurs).
These conditions of materiality are not met in this case. The outside expert
testimony on which Dixon relies provides that the AVL system does not record
every patrol car movement; instead it only provides snapshots (i.e., intermittent
transmissions of latitude and longitude coordinates that are then plotted by a
technician who draws conclusions about what happened between the snapshots).
He further testified that the satellite transmissions are subject to interference from
weather and man-made obstacles such as buildings or tunnels, and that there is no
report on the accuracy of the system as means of tracking patrol car movement.
But the snapshots indicating the lack of movement in Dixon’s patrol car were the
focus of Cruz’s testimony, not the specific routes of travel. Dixon’s counsel cross-
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examined Cruz at trial regarding the reliability of the AVL data as a means of
tracking patrol car movement. Additionally, Dixon could have—but did not—call
an expert to rebut Cruz’s testimony. Thus, while additional expert testimony on the
reliability or accuracy of the AVL system may have aided the jury in assessing the
weight of Cruz’s testimony, Dixon points to no piece of exculpatory evidence
that—had it been disclosed and introduced in a motion for new trial—would have
undermined confidence in the jury’s verdict. We hold that the trial court could
reasonably conclude that the additional expert testimony was not material or
exculpatory. Because Dixon did not establish a Brady violation, we overrule his
second issue.
Conclusion
Having overruled each of Dixon’s issues on appeal, we affirm the trial
court’s judgment.
Harvey Brown
Justice
Panel consists of Justices Bland, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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