The State of Texas v. Alfredo Valdez Nunez ( 2024 )

Opinion issued July 16, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00322-CR
———————————
THE STATE OF TEXAS, Appellant
V.
ALFREDO VALDEZ NUNEZ, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1693922
MEMORANDUM OPINION
Appellee, Alfredo Valdez Nunez, was charged with continuous sexual abuse
of a young child. Nunez moved to exclude a number of statements that the
complainant, A.M.,1 made to the prosecutor the day before trial was scheduled to
begin and that were provided to defense counsel on the eve of the trial setting. After
several hearings, the trial court entered an order granting in part and denying in part
Nunez’s motion to exclude evidence.
Appellant, the State of Texas, raises three issues on appeal. First, it contends
that the trial court abused its discretion in excluding the evidence because a civilian
complainant’s thoughts and memories are not in the constructive possession of the
State and therefore not subject to disclosure prior to an interview being conducted.
Second, it argues that the trial court may not suppress a child complainant’s
testimony regarding details of the offense alleged that she described in an interview
with the prosecutor days before trial under a theory that the State failed to gather the
information sooner. Third, the State contends that it does not have an affirmative
duty under Texas Code of Criminal Procedure article 39.14 to interview witnesses
at any particular time prior to trial to elicit further details of the offense. We reverse
and remand.
Background
Nunez was charged by indictment with continuous sexual abuse of a young
child on January 15, 2021. The indictment alleged:
1
To protect the identity of the minor complainant, we will use her initials. See TEX.
R. APP. P.9.8(b)(2).
2
[I]n Harris County, Texas, ALFREDO VALDEZ NUNEZ,
hereafter styled the Defendant, heretofore on or about November 24,
2012 continuing through November 24, 2017, did then and there
unlawfully, during a period of time of thirty or more days in duration,
commit at least two acts of sexual abuse against a child younger than
fourteen years of age, including an act constituting the offense of
indecency with child by contact, committed against A.M. on or about
November 24, 2012, and an act constituting the offense of indecency
with child by contact, committed against A.M. on or about November
24, 2017, and the Defendant was at least seventeen years of age at the
time of the commission of each of those acts.
Trial was set to begin on March 28, 2023.
Defense counsel served several discovery requests on the State. On October
23, 2020, Nunez’s attorney filed a Request for Discovery, Disclosure, and Notice
pursuant to Texas Code of Criminal Procedure Article 39.14. On December 1, 2020,
substituted defense counsel filed a Notice of Appearance and Request for
Compliance with Article 39.14 and Request to Preserve Evidence. On January 19,
2021, defense counsel filed a Request for Notice of State’s Intention to Introduce
Evidence of Other Crimes, Wrongs or Acts (Adjudicated or Unadjudicated) In
Punishment Phase Pursuant to Texas Code of Criminal Procedure Article 37.07, a
Request for Notice of Intent to Offer Extraneous Offenses and Convictions, a Motion
for Discovery pursuant to Article 39.14, and a Motion for Production of Evidence
Favorable to the Accused. On January 21, 2022, defense counsel filed Defendant’s
Motion for Discovery of Complainant’s Records.
3
On February 27, 2023, the State filed its Notice of Intention to Use Extraneous
Offenses and Prior Convictions, enumerating the following:
[O]n or about NOVEMBER 24, 2012 and on other, multiple occasions,
pursuant to a continuing course of conduct, the Defendant did
intentionally and knowingly:
• cause the penetration of the female sexual organ of A.M., hereafter
called the Complainant, a person younger than fourteen years of age
and not the spouse of the Defendant, by placing his finger in the
female sexual organ of the Complainant.
• cause the sexual organ of A.M., a person younger than fourteen
years of age and not the spouse of the Defendant, to contact the
sexual organ of the Defendant.
• cause the sexual organ of A.M., a person younger than fourteen
years of age and not the spouse of the Defendant, to contact the
mouth of the Defendant.
• cause the sexual organ of A.M., a person younger than fourteen
years of age and not the spouse of the Defendant, to contact the
finger of the Defendant.
• engage in sexual contact with A.M., a child under the age of
seventeen years and not the spouse of the Defendant, by touching
the genitals of A.M. with the intent to arouse and gratify the sexual
desire of the Defendant.
• engage in sexual contact with A.M., a child under the age of
seventeen years and not the spouse of the Defendant, by touching
the breast of A.M. with the intent to arouse and gratify the sexual
desire of the Defendant.
• engage in sexual contact with A.M., a person younger than
seventeen years of age and not the spouse of the Defendant, by
touching through clothing the genitals of A.M. with the intent to
arouse and gratify the sexual desire of the Defendant.
4
• engage in sexual contact with A.M., a person younger than
seventeen years of age and not the spouse of the Defendant, by
touching through clothing the breast of A.M. with the intent to
arouse and gratify the sexual desire of the Defendant.
• with intent to arouse the sexual desire of the Defendant, have sexual
contact with A.M., hereafter styled the Complainant, a child under
the age of seventeen years and not his spouse, by having the
Complainant touch the Defendant’s genitals.
• with intent to arouse and gratify the sexual desire of the Defendant,
intentionally and knowingly cause A.M., hereafter called the
Complainant, a child younger than seventeen years of age and not
the spouse of the Defendant, to expose the genitals of the
Complainant, by removing the Complainant’s clothing which
covered her genitals.
On March 10, 2023, defense counsel filed Defendant’s Request for
Exculpatory and Mitigating Evidence; U-Visa Evidence.
On March 28, 2023, Nunez filed a motion to exclude evidence. The motion
stated that on March 27, 2023, at approximately 8:35 p.m., the State sent statements
of the complainant that included extensive, previously undisclosed information
regarding the complainant’s recollection of events, and that the information included
dozens of previously undisclosed bad acts that fell under Texas Code of Criminal
Procedure 38.37 and Texas Rules of Evidence 404(b) and 609. Specifically, the
motion argued that the list (1) included illegal acts that allegedly took place in
different rooms of Nunez’s house, outside the house, and in Nunez’s van and
bedroom; (2) included allegations regarding how Nunez covered up his crime; and
(3) was wholly contradictory to statements the complainant had made during her
5
multiple assessments at the Children’s Assessment Center (CAC) in 2019. The
motion requested that the complainant’s statements to the prosecutor consisting of
previously undisclosed information and provided to defense counsel on the eve of
trial be suppressed and excluded.
The trial court held hearings on Nunez’s motion to exclude evidence on March
28 and April 21 and 27, 2023.
March 28 Hearing
Defense counsel stated that on March 27, at 8:30 p.m., the day before trial was
set to begin, the prosecutor sent notes from her interview with the complainant
conducted the previous day which counsel alleged contained numerous previously
undisclosed allegations against Nunez.2 He argued that the statements provided to
him on the eve of trial should be excluded under Code of Criminal Procedure
Articles 38.37 and 39.14 and Rules of Evidence 404 and 609. The State responded
that the information in the prosecutor’s interview notes and sent to defense counsel
contained no new allegations against Nunez, but rather only details of the allegations
2
At the March 28 hearing, defense counsel also stated that, on Saturday, March 25,
2023, the State provided him with a copy of an interview with the complainant
containing information concerning an alleged alternate perpetrator that the defense
had been requesting for three years and believed was mitigating, exculpatory, or
both. The trial court later ruled that it would admit the information obtained in the
March 25 interview concerning another alleged perpetrator. Because the State does
not challenge the trial court’s ruling concerning the evidence disclosed on March 25
related to an alleged alternate perpetrator in this appeal, we do not address this ruling
in our opinion.
6
already disclosed in the videos of the forensic interviews of the complainant, the
extended assessments, complainant’s medical records from her SANE exam, and
police reports. The State argued that its previously filed notice of intent to use
extraneous offenses contained all the information that it is statutorily required to
disclose under Code of Criminal Procedure Article 37.07—specifically, the
complainant’s name, the alleged offense, and the date and the county where the
offense occurred—and that it is not required to provide every detail of each offense
alleged. The State argued that it had provided all the evidence in its possession to
defense counsel, and that the details contained in the interview notes were not in its
possession until it interviewed the complainant at which time it immediately sent the
prosecutor’s notes to defense counsel.
Concluding that the State had a duty to disclose the statements to the defense
under Code of Criminal Procedure Article 39.14, and that the State’s late disclosure
was tantamount to a non-disclosure, the trial court stated that it would exclude the
complained-of testimony. Upon the State’s motion, the trial court granted a thirty-
day continuance. At the time of the hearing, there was no discovery order on file in
the case.
April 21 Hearing
In the second hearing, the State argued that because defense counsel had had
ample time to investigate the additional information disclosed on March 27 due to
7
the continuance, the State was entitled to introduce the complained-of testimony at
trial through direct examination of the complainant. Defense counsel responded that
the trial court did not grant a continuance simply to ensure that the defense had the
statutorily required notice of the additional disclosures; rather, it had decided to
exclude the statements. The trial court clarified its ruling, noting that it would allow
those statements which the State could show had been disclosed to the defense prior
to March 27, but that the statements which the State had disclosed for the first time
on March 27 were excluded. The State indicated that it would provide a list of the
complained-of testimony to the trial court and indicate which statements had been
previously disclosed.
April 27 Hearing
At the April 27 hearing, defense counsel filed a brief in support of his motion
to exclude evidence. At the hearing, he stated that the evidence provided to him on
March 27, the day before trial, was “material evidence” and constituted
consequential facts to the jury’s determination of guilt and innocence as well as
punishment. He argued that the State had sole access to the complainant’s “memory
bank” and, therefore, to the details of the alleged offense but, instead, it decided to
wait until the eve of trial to obtain these factual statements from the complainant and
disclose them to the defense. Defense counsel argued that the trial court had the
authority and discretion to sanction the State for their malfeasance, and that the State
8
had repeatedly failed to timely comply with the defense’s discovery requests, Brady3
requests, and disclosure requests during the course of the proceedings.
In response, the State argued that there was no case law supporting the
defense’s argument, and that “[n]o one’s memory banks are attributed to any party
and never have been.” It argued that Article 39.14 only addresses tangible evidence
that already exists and is in the State’s possession, and it does not address a person’s
thoughts and memories. It stated that the State does not have a duty to repeatedly
investigate to ensure that it has obtained every possible statement the complainant
may make, and that counsel could cross-examine and impeach the complainant with
any inconsistent statements. The State argued that Rule of Evidence 609 was
inapplicable because it only concerns convictions and none of the complainant’s
testimony related to Nunez’s convictions. As to Rule 404(b), the State argued that
the continuous sexual abuse of a child offense was alleged to have occurred over a
five-year period and therefore the complained-of testimony concerned same
transaction contextual evidence. The State argued that the statements did not exist
until the date they were recorded and the prosecutor wrote them down in her notes,
that the prosecutor disclosed them as soon as they were created, and the State cannot
be forced to create something sooner or at any particular time. The State contended
3
Brady v. Maryland, 373 U.S. 83 (1963). The Brady rule requires the State to disclose
evidence favorable to the defendant that is material either to guilt or to punishment.
See id. at 87.
9
that Texas law holds that a continuance is the proper remedy for the State’s failure
to timely disclose evidence, not suppression of the evidence unless it was done
willfully and intentionally.
At the conclusion of the hearing, the trial court stated that it would review the
State’s chart listing (1) each of the complained-of statements, (2) where the State
asserted each statement had been previously disclosed, and (3) the defense’s
objections to each statement, and that it would issue a written order.
Trial Court’s Order
On April 28, 2023, the trial court signed an order granting in part and denying
in part Nunez’s motion to exclude evidence. The court attached and incorporated by
reference the following exhibit with the court’s rulings on each of the complained-
of statements:
10
11
12
13
14
15
16
17
18
19
20
21
22
The State filed its Notice of Appeal and moved for a stay of the proceedings
on April 29, 2023.4
Discussion
The States raises the following three issues on appeal: (1) whether a civilian
complainant’s thoughts and memories are in the constructive possession of the State
and therefore subject to disclosure before an interview has been conducted, (2)
whether the trial court may suppress a child complainant’s testimony regarding
details of the offense she described in an interview given to a prosecutor a few days
before trial under the theory that the State failed to gather the information sooner,
and (3) whether the State has an affirmative duty under Code of Criminal Procedure
Article 39.14 to interview witnesses at any particular time prior to trial in order to
elicit further details of the offense. Before we reach these issues, however, we first
address Nunez’s request that we hold we lack jurisdiction to consider the State’s
appeal.
Appellate Jurisdiction
Texas Code of Criminal Procedure Article 44.01(a) provides: “The state is
entitled to appeal an order of a court in a criminal case if the order: . . . (5) grants a
motion to suppress evidence, a confession, or an admission, if jeopardy has not
4
This Court granted the State’s emergency motion to stay proceedings pending
disposition of this appeal on May 2, 2023.
23
attached in the case and if the prosecuting attorney certifies to the trial court that the
appeal is not taken for the purpose of delay and that the evidence, confession, or
admission is of substantial importance in the case . . . .” TEX CODE CRIM. PROC. art.
44.01(a)(5). Here, the trial court granted in part and denied in part Nunez’s motion
to exclude evidence. There is nothing in the record showing that jeopardy has
attached in the case. And, the District Attorney certified that the appeal is not being
sought for the purposes of delay and that the suppressed evidence “is of substantial
importance” in this case.
Nevertheless, Nunez asks this Court to hold that it does not have jurisdiction
to consider the State’s appeal according to the plain language of Article 44.01
because the trial court’s ruling did not prevent the State from moving forward with
prosecuting him. He argues that to permit the State to appeal evidentiary rulings such
as this one interferes with the trial court’s inherent power to control its own docket
and trial settings. The State responds that the Court of Criminal Appeals’s decision
in State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002) resolved any question
about whether this Court has appellate jurisdiction over the issues raised by the State
in this appeal.
In Medrano, the defendant was charged with capital murder and moved to
suppress the testimony of a fourteen-year-old witness to the alleged crime on the
grounds that its admission violated numerous provisions of the United States and
24
Texas Constitutions. See id. at 895–96. The trial court granted the motion to
suppress, and the State appealed certifying that it could not prosecute the appeal
without the child’s testimony. Id. at 895. The El Paso Court of Appeals dismissed
the State’s appeal for want of jurisdiction concluding that “although constitutional
implications may be present in this decision, [it was not] a ‘suppression’ in the sense
contemplated by Texas Code of Criminal Procedure, Article 44.01(a)(5) and the case
law interpreting it.” Id.On the State’s petition for discretionary review, the Court considered whether
Article 44.01(a)(5) permits the State to bring a pretrial appeal of an adverse ruling
on a motion to suppress evidence when the trial court does not conclude that the
evidence was “illegally obtained.” Id. at 894. The Court noted that although it had
held in State v. Roberts, 940 S.W.2d 655 (Tex. Crim. App. 1996) that the State could
not appeal a pretrial evidentiary ruling unless the defendant claimed that the
evidence was “illegally obtained,” neither the language of the statute nor legislative
intent supported such a limitation and that the rule in Roberts had proved unworkable
in practice. Id. It therefore overruled Roberts and held that under Article 44.01(a)(5)
“the State may appeal an adverse ruling on any pretrial motion to suppress evidence
as long as the other requirements of the statute are met.” Medrano, 67 S.W.3d at
903.
25
Citing the Medrano court’s recognition that the purpose of Article 44.05 is “to
permit the pretrial appeal of erroneous legal rulings which eviscerate the State’s
ability to prove its case,” id. at 895–96, Nunez argues that the Medrano court
intended for the State’s right to appeal to be limited to those exclusions of evidence
that would prevent the State from moving forward with prosecution. The State
responds that the trial court’s order excluded “huge swaths of the child’s testimony
about the charged offense” describing the “when, where, and how” of the alleged
sexual abuse. It argues that, in doing so, the ruling effectively gutted the evidence
needed to prove the charged offense of continuous sexual abuse of a young child. It
also contends that a child complainant could not be expected to parse through her
testimony to figure out what she could and could not testify to under the trial court’s
order.
The plain language of Article 44.05(a) does not require that the exclusion of
evidence prevent the State from being able to move forward with prosecuting a
defendant. Rather, it requires that the prosecuting attorney certify that the evidence
is of “substantial importance” in the case. TEX CODE CRIM. PROC. art. 44.01(a)(5).
That was done here.5 In light of Article 44.05(a) and the holding in Medrano, we
5
In State v. Redus, the Court of Criminal Appeals stated that a defendant may not
challenge the verity of the prosecutor’s certification of the “substantial importance”
of the evidence suppressed “because the plain language of the statute neither
requires nor permits it.” 445 S.W.3d 151, 156 (Tex. Crim. App. 2014). Instead,
“[t]he prosecutor’s promise of importance is sufficient.” Id.26
conclude that we have jurisdiction over the State’s appeal, and we decline the
invitation to hold otherwise.
Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial
court abuses its discretion if the decision falls outside the zone of reasonable
disagreement. Id. at 83. Before we may overrule a trial court’s evidentiary decision,
we must hold that the trial court’s ruling was “so clearly wrong as to lie outside the
zone within which reasonable people might disagree.” Id. (quoting Taylor v. State,
268 S.W.3d 571, 579 (Tex. Crim. App. 2008)). We will uphold the trial court’s
evidentiary ruling if it is correct on any theory of law applicable to that ruling. De la
Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
State’s Duty to Disclose
The State contends that the trial court fundamentally misunderstood the
requirements for discovery and suppression based on a purported discovery
violation. It argues that Article 39.14(a), which was the basis of the trial court’s
exclusionary ruling, addresses tangible items that already exist and confines the
release of evidence to that evidence within the possession, custody, and control of
the State or a State actor. The State argues that the complainant’s thoughts and
memories satisfy neither of these requirements. It reasons that because Article 39.14
27
did not apply to the complainant’s thoughts and memories until the complainant was
interviewed and her statements were written or recorded, no discovery violation
occurred pursuant to Article 39.14(a) and the trial court abused its discretion in
finding otherwise.
Nunez responds that the issue before this Court is not the prosecutor’s physical
notes or even the child’s memory but, rather, the State’s failure to interview its main
witness prior to announcing ready for trial and then attempting to force the defense
to move for a continuance while still expecting that evidence to be admissible at
trial. Although Nunez acknowledges that the trial court does not have the authority
to direct the State’s prosecution or dictate how and when it should interview its
witnesses, he argues that trial courts have broad discretion to manage and control
their dockets which includes imposing and enforcing discovery deadlines. Nunez
asserts that having requested notice of the State’s intention to use extraneous offense
evidence more than six months before trial, he was entitled to assume that the State
did not intend to use such evidence because the State had not provided the requisite
notice by the eve of trial. He contends that whether the trial court’s authority stems
from its inherent power to control its own docket, Articles 39.14 or 38.37, the Due
Process Clause, or the Rules of Evidence, the court did not abuse its discretion in
excluding the complainant’s untimely disclosed allegations.
28
Code of Criminal Procedure Article 39.14
Texas Code of Criminal Procedure Article 39.14, also known as the Michael
Morton Act, governs discovery in criminal cases. See TEX. CODE CRIM. PROC. art.
39.14. “[I]t addresses “what the State must produce and when the State must produce
it.” In re State ex rel. Skurka, 512 S.W.3d 444, 453 (Tex. App.—Corpus Christi–
Edinburg 2016, no pet.). The statute provides, in relevant part:
(a) [A]s soon as practicable after receiving a timely request from the
defendant the state shall produce and permit the inspection and the
electronic duplication, copying, and photographing, by or on behalf of
the defendant, of any offense reports, any designated documents,
papers, written or recorded statements of the defendant or a witness,
including witness statements of law enforcement officers but not
including the work product of counsel for the state in the case and their
investigators and their notes or report, or any 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.
....
(h) Notwithstanding any other provision of this article, 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 punishment for the offense charged.
....
(k) If at any time before, during, or after trial the state discovers any
additional document, item, or information required to be disclosed
under Subsection (h), the state shall promptly disclose the existence of
the document, item, or information to the defendant or the court.
29
TEX. CODE CRIM. PROC. art. 39.14(a), (h), (k).
A. Exclusion of Evidence Based on Article 39.14
A review of the record shows that the trial court based its ruling excluding
evidence on its finding that the State had failed to comply with the requirements of
Article 39.14.
At the March 28 hearing, the following exchange took place:
[The State]: And Judge, so I am clear, what pieces of discovery does
the Court believe we had in our possession that we didn’t turn over
when we announced ready?
The Court: Well, I don’t believe that there was information that you had
in your possession. I believe that the State failed to carry out its duty of
affirmatively—affirmative duty of going after information that could
be probative, could be exculpatory, could be mitigating, could be
Brady. And so if [the prosecutor] believed that possibly information
existed in the complainant’s memory, then she had a duty to ferret that
out prior to announcing ready.
When the prosecutor responded that the court was placing an unfair burden
on the State, the trial court stated:
I am not putting an unfair burden on the State. What I am doing is
following the law and I believe that in the law I’m going to point your
attention to where I’m leading and it’s 39.14. And I believe that this
information doesn’t have to be relevant in the sense of—relevant
inadmissible. It just has to trigger the 39.14 disclosure, which my
understanding is defense counsel requested almost a year ago the 39.14
and the motion for discovery was filed January of 2021.
....
However, this is a novel—I think it’s a novel concern as to whether or
not the complainant’s memory is in the possession or in the control of
the State. Well, certainly your witness and certainly the witness that
30
you’re relying on to be—to put your case in chief on. And so if that
person is the person who has the information that everybody was on
notice of, but you only had access to, I think that the duty of the
prosecutor[’s] office is to get that information turned [i]n. And I believe
that it was then practical a long time before March 25th and March 27.
When the prosecutor noted that, for purposes of Brady, information in the possession
of the complainant is not in the possession of the State, the court stated:
THE COURT: We are not talking about Brady necessarily. Brady could
be a part of it, but we are not talking about Brady necessarily. We are
talking about 39.14.
Later, at the April 27 hearing, the trial court stated:
Okay. Well, here’s what I wanted to kind of make clear so that we know
what we are arguing about right now. I had already found that the
disclosures from the 25th and the 27th were late. I already disclosed
that I believe the State had a duty—I’m sorry, I’ve already found that
the State had a duty to affirmatively seek out information that has the
potential to be mitigating, has the potential to be exculpatory, has the
potential to be of consequence. I mean, because that’s my
understanding of the 39.14 requirements on the State.
....
Your office, the Harris County District Attorney’s Office is under the
requirements of 39.14 of disclosure and all of their agents.
When the State responded that it did not violate Article 39.14 because the
complained-of testimony was not in its possession prior to March 27, the State
disclosed it as soon as they received it, and the complainant’s memory is not an item
contemplated by the statute, the following exchange took place:
31
[The Court]: Do you believe that deliberately blinding yourself or
willfully ignoring the opportunity or the information absolves the State
of the duty to disclose under 34.19?
When the State reiterated that that it had no obligation to disclose information
that is not in its possession, the trial court stated:
Well, then what you’re saying is that the information with which the
jury can convict someone, because it is not tangible, is not governed
under 39.14. And I have to wholly reject that.
B. Discovery of “Tangible Items” in State’s Possession
The State contends that the information at issue in this case—the
complainant’s thoughts and memories—does not constitute the type of information
that is contemplated by Article 39.14 because they are not “tangible things” that
“were in the possession, custody, or control of the State.” Id. It argues that Article
39.14 applied only once the prosecutor or someone under contract with the State
received them, and the prosecutor released her written notes to the defense the same
day she received the information.
Article 39.14(a) requires the State, upon request by the defense and as soon
as practicable, to “produce and permit the inspection and the electronic duplication,
copying, and photographing, by or on behalf of the defendant” of a list of items,
including: (1) offense reports; (2) any designated documents, papers, written or
recorded statements of the defendant or a witness, including witness statements of
law enforcement officers; and (3) any designated books, accounts, letters,
32
photographs, or objects, or other tangible things not otherwise privileged. See id.(emphasis added). The complainant’s thoughts and memories do not fit into any of
the categories required to be produced by the State under Article 39.14(a). See Hicks
v. State, 606 S.W.3d 308, 324 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d)
(concluding Article 39.14 did not require State to disclose information that
prosecutor was related to prospective juror because it was not type of information
that statute was designed to require prosecutor to make available to defense).
Moreover, the information at issue was not in the State’s possession, custody, or
control at the time it was in the complainant’s mind. Rather, Article 39.14’s
provisions were triggered when the State received the information and reduced it to
written form. See In re Stormer, No. WR-66,865-01, 2007 WL 1783853, at *3 (Tex.
Crim. App. Jun. 20, 2007, order) (per curiam) (not designated for publication)
(stating that Article 39.14 “is specifically limited to the discovery of pre-existing
documents and tangible items that are in the State’s possession” and does not give
trial court authority to order State “to create a document that does not currently
exist”); Coleman v. State, 577 S.W.3d 623, 635 (tex. App.—Fort Worth, 2019, no
pet.) (holding State did not violate defendant’s Article 39.14 rights by not disclosing
identity and criminal history of informant where record demonstrated that State did
not possess information and thus had nothing to disclose).
33
C. Affirmative Duty to Seek Information
The State next argues that Article 39.14 does not impose an affirmative duty
on the State to interview a witness at any particular time and seek out information
outside the State’s possession, and that the trial court erred in finding that it did.
Nunez responds that the State violated Article 39.14 when it failed to interview its
main witness prior to announcing ready for trial and then attempted to force the
defense to move for a continuance while still expecting that evidence to be
admissible at trial.
During the hearings, the prosecutor argued that the State was not required to
give the defense all of the details of the charged offense because the complainant
was not a state actor and her thoughts and memories were not in the possession of
the State. The trial court stated, “But I’m holding you responsible for the affirmative
duty to gather the information,” and “if [the prosecutor] believed that possibly
information existed in the complainant’s memory, then she had a duty to ferret that
out prior to announcing ready.”
As discussed above, under Subsection (a), the State is required to disclose
tangible items that already exist and that are within the possession, custody, and
control of the State. Subsection (h) of Article 39.14 requires the State to 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
34
guilt of the defendant or would tend to reduce the punishment for the offense
charged.” Subsection (k) states that “[i]f at any time before, during, or after trial the
state discovers any additional document, item, or information required to be
disclosed under Subsection (h), the state shall promptly disclose the existence of the
document, item, or information to the defendant or the court.” See TEX. CODE CRIM.
PROC. art. 39.14 (h), (k). None of these provisions, however, imposes an affirmative
duty on the State to seek out and disclose information that is outside the State’s
possession or create evidence that does not exist. In re State ex rel. Best, 616 S.W.3d
594, 600 (Tex. Crim. App. 2021) (orig. proceeding) (“But whatever may be the
permissible scope of a trial court’s discretion over matters of pre-trial discovery, it
does not extend to the point of ordering the State to create or generate evidence that
does not otherwise exist. This Court has plainly said that a trial court does not have
the authority to do that.”); In re State, 659 S.W.3d 1, 14 (Tex. App.—El Paso 2020,
no pet.) (noting that disclosure requirements of Article 39.14 are limited to pre-
existing documents and items already in State’s possession; trial court cannot order
State to create document that is not already in its possession, custody, or control,
even after passage of Michael Morton Act); Coleman, 577 S.W.3d at 634 (“Article
39.14 does not, however, give the trial court the authority to order the State to create
a document that is not already in its possession, custody, or control.”) (citing In re
35
State ex rel. Munk, 448 S.W.3d 687, 692 (Tex. App.—Eastland 2014, orig.
proceeding)).
D. Inherent Authority to Control Docket
In his brief, Nunez acknowledges that it is “uncontested that the trial court
lacks authority to direct the State’s prosecution or dictate how and when it should
interview witnesses.” He argues, however, that trial courts are vested with discretion
to manage and control their dockets, which necessarily includes imposing and
enforcing discovery deadlines.
We agree that trial courts have broad discretion in managing the course of a
trial generally. See Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005);
Taylor v. State, 255 S.W.3d 399, 402 (Tex. App.—Texarkana 2008, pet. ref’d)
(noting that “trial court is vested with broad discretion to manage and control its
docket in order to promote the orderly and efficient administration of justice while
protecting the statutory and constitutional rights of all persons who come before the
court”). Every court has the “inherent power, exercisable in its sound discretion,
consistent with the constitution and statutes,” to control the disposition of the cases
on its docket with “economy of time and effort.” In re State ex rel. Skurka, 512
S.W.3d at 452. However, the record reflects that the trial court had not imposed any
discovery deadlines prior to the time the State obtained and disclosed the
information. And no discovery order existed when the trial court stated that it would
36
suppress the complained-of evidence. The record reflects that the trial court did not
sign a discovery order in the case until April 4, 2023. Moreover, a trial court’s
inherent power to control disposition of cases on its docket must nevertheless be
“consistent within the constitution and statutes.” Brager v. State, No. 0365-03, 2004
WL 3093237, at *2 (Tex. Crim. App. Oct. 13, 2004) (not designated for publication);
see also State v. Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002) (refusing to
conclude that trial court has inherent jurisdiction or authority to perform act not
conferred on trial court by constitution or by statute). Stated differently, the trial
court’s authority to order discovery is constrained by the express language of Article
39.14. As such, we conclude that the trial court did not have the inherent power to
dictate how and when the State should interview the complainant so that it would be
required to disclose the prosecutor’s notes taken during the interview. In re State ex
rel. Best, 616 S.W.3d at 600 (“But whatever may be the permissible scope of a trial
court’s discretion over matters of pre-trial discovery, it does not extend to the point
of ordering the State to create or generate evidence that does not otherwise exist.”).
E. Other Grounds for Exclusion of Evidence
Nunez also objected to the additional disclosures on the grounds that their
admission would violate the Due Process Clause of the Sixth Amendment, Texas
Rules of Evidence 404 and 609, and Code of Criminal Procedure Article 38.37. We
consider each of these grounds below. See De la Paz, 279 S.W.3d at 344 (“[I]f the
37
trial court’s evidentiary ruling is correct on any theory of law applicable to that
ruling, it will not be disturbed . . . .”).
1. Sixth Amendment
The Sixth Amendment of the United States Constitution states:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.
U.S. CONST. amend. VI. Here, the only provisions which could arguably support the
trial court’s rulings are (1) Nunez’s right to be informed of the nature and cause of
the accusation against him, and (2) his right to confront the witnesses against him.
a. Nature and Cause of Accusation
Nunez was indicted for continuous sexual abuse of a young child on January
15, 2021. The indictment alleged:
[I]n Harris County, Texas, ALFREDO VALDEZ NUNEZ, hereafter
styled the Defendant, heretofore on or about November 24, 2012
continuing through November 24, 2017, did then and there
unlawfully, during a period of time of thirty or more days in duration,
commit at least two acts of sexual abuse against a child younger than
fourteen years of age, including an act constituting the offense of
indecency with child by contact, committed against A.M. on or about
November 24, 2012, and an act constituting the offense of indecency
with child by contact, committed against A.M. on or about November
24, 2017, and the Defendant was at least seventeen years of age at the
time of the commission of each of those acts.
38
The Court of Criminal Appeals has recognized that, in most cases, a charging
instrument that tracks the statutory text of an offense is sufficient to provide a
defendant with adequate notice. State v. Zuniga, 512 S.W.3d 902, 905 (Tex. Crim.
App. 2017) (“[G]enerally, when an indictment tracks the language of a penal statute,
it will satisfy constitutional and statutory requirements.”); State v. Barbernell, 257
S.W.3d 248, 250 (Tex. Crim. App. 2008). Texas Penal Code section 21.02, which
sets forth the elements of the charged offense, provides, in relevant part:
(b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether the
acts of sexual abuse are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse,
the actor is 17 years of age or older and the victim is:
(A) a child younger than 14 years of age, regardless of whether
the actor knows the age of the victim at the time of the
offense . . . .
(c) For purposes of this section, “act of sexual abuse” means any act that is a
violation of one or more of the following penal laws:
...
(2) indecency with a child under Section 21.11(a)(1), if the actor
committed the offense in a manner other than by touching, including
touching through clothing, the breast of a child[.]
TEX. PENAL CODE § 21.02. Here, the indictment tracked the elements of Penal Code
section 21.02. Nunez was provided with constitutionally sufficient notice.
39
b. Right to Confront Witnesses
The Due Process Clause also guarantees to the accused the right to confront
witnesses. U.S. CONST. amend. VI. Here, there is nothing in the record indicating
that the complainant would not be present at trial and subject to cross-examination.
Indeed, in arguing that the complainant should be able to testify to the statements
provided on March 27, the State repeatedly noted that defense counsel could cross-
examine and impeach her with any inconsistent statements. The Sixth Amendment’s
Due Process Clause does not support the trial court’s ruling to exclude evidence.
2. Code of Criminal Procedure Article 38.37
In addition to the Sixth Amendment, Nunez also objected to admission of the
statements on the grounds that it violated Article 38.37, “Evidence of Extraneous
Offenses or Acts.”
“An extraneous offense is any act of misconduct, whether resulting in
prosecution or not, which is not shown in the charging instrument and which was
shown to have been committed by the accused.” Martinez v. State, 190 S.W.3d 254,
262 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (internal quotations omitted).
Generally, Texas Rule of Evidence 404(b) prohibits the admission of extraneous
offense evidence to prove a person’s character or to show that the person acted in
conformity with that character. See TEX. R. EVID. 404(b). But when a defendant is
being prosecuted for the offense of continuous sexual abuse of a young child,
40
evidence that the defendant has committed one or more of the enumerated sexual
offenses against a child, including the offense of indecency with a child, sexual
assault of a child, or aggravated sexual assault of a child, such evidence may be
admitted for any bearing the evidence has on relevant matters, including the state of
mind of the defendant and the child, the previous and subsequent relationship
between the defendant and child, and the character of the defendant and acts
performed in conformity with the character of the defendant. TEX. CODE CRIM.
PROC. art. 38.37, §§ 1(b), 2(b). Section 3 of Article 38.37 provides: “The state shall
give the defendant notice of the state’s intent to introduce in the case in chief
evidence described by Section 1 or 2 not later than the 30th day before the date of
the defendant’s trial.” TEX. CODE CRIM. PROC. art. 38.37, § 3.
The State filed its Notice of Intention to Use Extraneous Offense and Prior
Convictions on February 27, 2023. Relevant here, the notice stated that the State
intended to introduce in its case-in-chief evidence of other crimes, wrongs, or acts
committed by Nunez against the complainant for its bearing on relevant matters,
including, but not limited to, the state of mind of the defendant and the child, the
previous and subsequent relationship between the defendant and the child, and the
character of the defendant or that the defendant acted in conformity with that
character. And, as set forth above, the notice also enumerated the extraneous acts
41
that the State intended to introduce at trial. Specifically, the notice included
allegations that appellee intentionally and knowingly:
• caused penetration of the complainant’s sexual organ with appellee’s
finger,
• caused appellee’s sexual organ to contact the complainant’s sexual organ,
• caused the complainant’s sexual organ to contact appellee’s mouth,
• caused the complaint’s sexual organ to contact the complainant’s finger,
• engaged in sexual contact with the complainant by touching her genitals
with the intent to arouse and gratify his sexual desire,
• engaged in sexual contact with the complainant by touching her breasts
with the intent to arouse and gratify his sexual desire,
• engaged in sexual contact with the complainant by touching through her
clothing the complainant’s genitals with the intent to arouse and gratify his
sexual desire,
• engaged in sexual contact with the complainant by touching through her
clothing the complainant’s breasts with the intent to arouse and gratify his
sexual desire,
• with intent to arouse and gratify his sexual desire, have sexual contact with
the complainant by having the complainant touch appellee’s genitals, and/or
• with intent to arouse and gratify his sexual desire, cause the complainant
to expose her genitals by removing her clothing which covered her genitals.
The State’s notice to the defense more than thirty days before the date of the
first trial setting was sufficient under Article 38.37 to prevent any surprise from the
information included in the prosecutor’s notes. See Pena v. State, 554 S.W.3d 242,
42
248–49 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (noting purpose of
Article 38.37’s notice provisions for admission of extraneous offenses is to avoid
surprise and to allow defendant to mount effective defense).
3. Rules of Evidence 404(b) and 609
Nunez also objected to admission of the complainant’s statements on the
grounds that it violated Texas Rules of Evidence 404(b) and 609.
Rule 404(b) provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. On timely request by a defendant in a criminal case,
the prosecutor must provide reasonable notice before trial that the
prosecution intends to introduce such evidence--other than that arising
in the same transaction--in its case-in-chief.
TEX. R. EVID. 404(b).
Rule 609 provides that “[e]vidence of a criminal conviction offered to attack
a witness’s character for truthfulness must be admitted if: (1) the crime was a felony
or involved moral turpitude, regardless of punishment; (2) the probative value of the
evidence outweighs its prejudicial effect to a party; and (3) it is elicited from the
witness or established by public record. TEX. R. EVID. 609. The purpose of the rule
43
is to give an adverse party a fair opportunity to contest the use of a witness’s
convictions and to prevent ambush. See Johnson v. State, 885 S.W.2d 578, 581 (Tex.
App.—Dallas 1994, no writ).
Neither Rule 404(b) nor Rule 609 could have provided a basis for the trial
court’s ruling excluding the complained-of statements. The rules of evidence, except
those concerning privilege, do not apply to pretrial suppression hearings. See Hubert
v. State, 312 S.W.3d 554, 558 n.3 (Tex. Crim. App. 2010) (“We have held that the
Rules of Evidence do not apply in a pre-trial suppression hearing.”); Granados v.
State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002) (“Because suppression hearings
involve the determination of preliminary questions concerning the admissibility of
evidence . . . the rules of evidence (except privileges) no longer apply to suppression
hearings.”); see also Schultz v. State, 457 S.W.3d 94, 98 (Tex. App.—Houston [1st
Dist.] 2014, no pet.) (“With the exception of rules concerning privileges, the Texas
Rules of Evidence do not apply in a suppression hearing.”). Further, Rule 609 applies
to impeachment of a witness with evidence of a criminal conviction. TEX. R. EVID.
609. There is no reference in the excluded statements to either Nunez or the
complainant having a criminal conviction.
In summary, we conclude that the State did not have a duty to disclose the
complained-of statements to the defense under Article 39.14, and none of the other
grounds on which Nunez objected to admission of the statements—the Sixth
44
Amendment’s Due Process Clause, Article 38.37, and Rules of Evidence 404(b) and
609—provided a basis for the trial court’s exclusionary rulings. The trial court
abused its discretion in excluding the statements set forth in Exhibit 1 to its April 28,
2023 order. Accordingly, we sustain the State’s issues.
Conclusion
We reverse the trial court’s April 28, 2023 Order on Defendant’s Motion to
Exclude Evidence and we remand this case to the trial court for further proceedings.
Amparo Monique Guerra
Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
Do not publish. See TEX. R. APP. P. 47.2(b).
45