NO. 07-01-0327-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 20, 2002
______________________________
FAUSTINO M. DIAZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-434858; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In a single issue, appellant Faustino M. Diaz, Jr. argues his conviction for the felony
grade offense of driving while intoxicated must be reversed. The punishment, enhanced
because of two prior convictions of driving while intoxicated, was assessed by the trial
court at 35 years incarceration in the Institutional Division of the Department of Criminal
Justice. Disagreeing that reversal is required, we affirm the judgment of the trial court.
Appellant’s complaint arises out of the prosecutor’s alleged failure to disclose
evidence in response to an agreed discovery order. A brief discussion of the facts
underlying appellant’s prosecution is helpful in discussing the question before us. On the
evening of September 5, 2000, a motorist on Loop 289 in Lubbock notified police of a
motor vehicle being driven erratically. Lubbock Police Officer Michael Shipman responded
to the call, followed the car, and eventually pulled it over. Officer Brett Heilman also
responded to the call to assist Shipman. Predictably, appellant was the driver of the
suspect vehicle. A video camera in Shipman’s car recorded the stop, as well as the field
sobriety test administered by the officers. The officers determined appellant was
intoxicated and arrested him. At the police intake center, a video camera recorded
appellant’s refusal to submit to a breath test. Both videotapes were received into evidence
without objection.
Appellant sought, and by agreement was granted, a pretrial order seeking discovery
of 19 classes1 of items, including all exculpatory statements or other evidence favorable
to appellant and material to the issues of guilt or punishment. After the first trial day, a
police officer involved in the case informed the prosecutor the officers had found beer cans
in appellant’s vehicle when it was inventoried. The prosecutor informed defense counsel
of this occurrence that evening. When the proceedings resumed the next day, the
prosecutor told the trial judge about the additional evidence, stating that the police officers
1
This generic motion included some items not relevant to the facts of this case, such
as evidence of the “character of the alleged victim.”
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found “five empty beer cans in the car.” Although this information appeared on the written
inventory, that inventory had not been provided to the prosecutors and it was not included
in the officers’ reports.
Because the evidence had not been supplied earlier to defense counsel, he
objected to its admission as violative of the discovery motion which, he argued, “instructed
[the State] to permit me to see any physical evidence that was gathered at the scene or
advise me of any physical evidence that was going to be offered into evidence.” However,
he did not request a continuance to give him the opportunity to investigate the new
evidence. The trial court allowed defense counsel to make his objection to the evidence
outside the presence of the jury and ruled the officers could testify as to what they saw, but
prohibited the introduction of physical evidence. After the defense cross-examination, on
its redirect examination, the State queried one of the officers about the items found during
the post-arrest vehicle inventory. He replied:
There were some – I believe there were beer cans or bottles in the vehicle
and I believe there was a cooler in the trunk of the vehicle when we opened
it up. And I can’t say for sure if there was any alcoholic beverages in the
cooler or not. But I believe inside the vehicle we found some bottles of beer
and some cans of beer.
When asked if the bottles or cans were empty or full, the officer testified that he
could not recall. He also stated that the containers were not collected as evidence
because they were not contraband and “because I didn’t know if he was drinking them or
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not in the car,” but that they were “clues” supporting the officer’s conclusion that appellant
had been drinking.2
Appellant now argues 1) the trial court erred in admitting the testimony because it
was not disclosed in response to the discovery order, and 2) the officer’s testimony was
so different from the State’s representation as to what it would be as to deprive appellant
of his right of cross-examination and effective assistance of counsel.
In support of his first proposition, appellant cites the seminal case of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which established a
prosecutor’s duty to disclose exculpatory material to defense counsel. He also relies on
Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), for the
proposition that prosecutors have an affirmative duty to discover any evidence favorable
to the defense in the possession of other government actors, including police.
The first question we must decide is whether the testimony in question was material
and exculpatory within the Brady purview, or was it otherwise within the discovery order.
Evidence is material if there is a reasonable probability that if the evidence had been
disclosed, the outcome of the proceeding would have been different. U.S. v. Bagley, 473
U.S. 667, 681-82, 105 S.Ct. 3375, 87 L.Ed.2d 481(1985). In this appeal, appellant argues
the additional evidence falls within the Brady scope because it “could have been favorable
2
Despite the officer’s testimony that the can did not evidence appellant had drunk
beer in the car, in his closing argument, the prosecutor used that testimony to support the
statement “we know he had been drinking that night.”
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to appellant” that the officer could not recall whether the beer containers were full or
empty. Although he admits the testimony that the containers were empty would not be
favorable to him, he posits that the officer’s inability to remember would have enabled him
to argue “they must have been full, otherwise [the officer] would have remembered empty
beer containers . . . and would have reflected such a fact in his report.” Thus, he reasons,
the information should have been revealed to him earlier. However, acceptance of this
argument would require us to speculate as to how the jury would view facially ambiguous
evidence. Because of its ambiguity, the evidence falls short of the Bagley explication.
Moreover, the evidence was not actually withheld from the defendant as was contemplated
in Brady. Rather, the evidence was actually presented in open court to the jury and
appellant was not deprived of the opportunity to argue its effect to the jury if he desired to
do so.
We must next consider whether the challenged material fell within the requisites of
the discovery motion. In his initial objection to its receipt into evidence, appellant argues
his motion covered any physical evidence that would be introduced at trial. However, the
motion did not actually contain that provision. Supporting his objection, appellant cites
provisions 7 and 19 of the motion, which address “all statements . . . which tend to
exculpate defendant or mitigate punishment,” as well as evidence which is “favorable to
[the] defendant and material to guilt or to punishment.” As we have discussed above, the
evidence of beer containers in the car was not exculpatory and thus was not within the
discovery motion.
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Appellant’s second argument is that the actual trial testimony by Officer Shipman
was so different from what the prosecutor described to him that it surprised him and, by
doing so, effectively denied him his due process right of cross-examination, thereby
depriving him of reasonably effective assistance of trial counsel. However, his failure to
request a continuance waived any error. See Williams v. State, 995 S.W.2d 754, 762
(Tex. App.--San Antonio 1999, no pet.). By failing to request a continuance to investigate
the “new” evidence, appellant denied the trial court an opportunity to correct any error and
proceed with the trial. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001); Tex.
R. App. P. 33.1. Any error was waived.
In summary, appellant’s issue is overruled and the judgment of the trial court is
affirmed.
John T. Boyd
Chief Justice
Do not publish.
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