IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 8, 2003
______________________________
GILBERT ACOSTA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-438250; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINIONAppellant Gilbert Acosta appeals from his conviction for attempted burglary of a habitation with intent to commit arson and his sentence of 18 years imprisonment. We affirm.
On November 28, 2001, appellant was indicted on charges of arson and burglary of a habitation with intent to commit arson. The State elected to proceed on the latter charge. On January 22, 2002, the case was tried before a jury. On January 23, 2002, the jury found appellant guilty. A sentencing hearing was held on March 1, 2002, which resulted in the trial court sentencing appellant to 18 years incarceration.
Counsel for appellant has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel has discussed why, under the controlling authorities, there is no reversible error in the trial court proceedings or judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).
In reaching the conclusion that the appeal is frivolous, counsel advances four possible issues. Those issues are based on whether (1) the trial court erred in overruling appellant's objection that the State's notice to appellant of its intent to offer evidence of several extraneous offenses was untimely given, (2) the trial court erred in overruling any of appellant's objections during trial, (3) the trial court erred in not including an instruction on the lesser included offense of criminal mischief in the jury charge where such a charge was not requested by appellant's counsel, and (4) the failure of appellant's trial counsel to request a jury instruction on the lesser included offense of criminal mischief constituted ineffective assistance of counsel.
After referencing, analyzing and discussing both the record, counsel has discussed why, under the controlling authorities, there is no arguably reversible error in the trial court's judgment. See High, 573 S.W.2d at 813. Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. Appellant has not filed a response to counsel's motion and brief.
We have made an independent examination of the record to determine whether there are any arguable grounds for appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. We agree that the appeal is without merit.
Accordingly, counsel's Motion to Withdraw is granted. The judgment of the trial court is affirmed.
Phil Johnson
Chief Justice
Do not publish.
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NO. 07-10-00129-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 7, 2011
SCOTT EDWARD SATTLER, II, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF BRAZOS COUNTY;
NO. 09-03497-CRM-CCL2; HONORABLE JAMES W. LOCKE, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Scott Edward Sattler, II, appeals from his jury conviction of the offense of assault bodily injurydating violence and the resulting sentence of confinement for 365 days, suspended in favor of community supervision for a period of 18 months. Through a single issue, appellant contends the trial court erred in denying his motion for new trial, based on a Brady[1] violation complaint. We will affirm.
Background
On August 6, 2009, after an argument, appellant and his girlfriend of three weeks had a physical altercation that resulted in injuries to the girlfriend. She testified he hit her three times in the face and neck. Although appellant did not testify at trial, evidence showed he claimed the girlfriend attacked him first.
On appeal, much of appellants argument focuses on the evidence he suffered bruises from blows from the girlfriend. At trial, the only law enforcement officer to testify said he saw visible marks on the left side of the girlfriends neck but did not see any visible marks on appellant despite his complaints that his face, arms, and right side hurt. A doctor testified he examined appellant five days after the altercation and observed three bruises, one on appellants upper right arm, one near his right clavicle and one just above his knee.[2] The doctor testified the bruises were consistent with appellants statement that his girlfriend struck him on August 6.
Appellant was arrested by a College Station police officer and was first taken to the city jail. He was later transferred to the Brazos County jail. Medical intake was performed at each jail. At trial, a College Station officer read from the medical intake records from the city jail. The statements he read before the jury refer to complaints by appellant that his face and arms hurt from the fight. They also said there were no visible marks except for old bruises.
At the hearing on appellants motion for new trial, a Brazos County detention officer testified the records collected at the county jail included appellants medical history taken by the jail staff the morning he was booked into the county jail. He testified the records refer to bruises on appellants right thigh, right arm and shoulder area. He also testified this information was most likely volunteered by appellant as inmates are not asked to remove their clothing for the medical assessment. An employee of appellants counsel also testified, stating she served a subpoena for appellants records on the Brazos County jail. The subpoena was issued on the day of trial, January 20, 2010. The employee collected the requested records the same day, before closing arguments began. Although she collected the records in the courthouse, she took them back to counsels office.
The trial court denied appellants motion for new trial.
Analysis
In his sole point of error, appellant challenges the trial courts denial of his motion for new trial. He contends the State was required to disclose the county jail medical intake records kept by the Brazos County Sheriffs Office under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant asserts the evidence of the existence of bruises in those records specifically refuted the testimony of the only law enforcement officer to testify at trial. If the new trial had been granted and the evidence admitted, appellant argues, there is a reasonable probability that the result of the trial would have been different.
At the guilt-innocence phase of trial, the court charged the jury on self-defense. Tex. Penal Code Ann. § 9.31 (West 2010). The charge properly placed on the State the burden to disprove appellants contention his use of force was justified by his reasonable belief it was immediately necessary to protect himself against his girlfriends use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (West 2010); see Rodriguez v. State, 212 S.W.3d 819, 821 (Tex.App.Austin 2006, no pet.), citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003) (when justification is raised by the evidence, the State bears the burden of proving beyond a reasonable doubt the defendants conduct was not justified by self-defense).
We review the granting or denial of a motion for new trial under an abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). As the reviewing court, we do not substitute our judgment for that of the trial court, rather we decide whether the trial court's decision was arbitrary and unreasonable. Id. Further, we must view the evidence in the light most favorable to the trial court's ruling and presume all reasonable factual findings that could have been made against the losing party were made. Id. Accordingly, a trial court abuses its discretion by denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id. The ruling of the trial court will be upheld if it is supported by the record and is correct under any theory of law applicable to the case regardless of the trial courts stated basis. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App. 2007).
Under Brady, 373 U.S. 87, the State has an affirmative duty under the Due Process Clause of the Fourteenth Amendment to disclose evidence favorable and material to a defendant's guilt or punishment. Harm v. State, 183 S.W.3d 403, 406 (Tex.Crim.App. 2006). Once such exculpatory evidence comes into its possession, the State's duty under Brady attaches, with or without a request from the defense for disclosure. Id. For a court to find reversible error under Brady, a defendant must show that: (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and (3) the evidence is material, i.e. there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). We must analyze the alleged Brady violation "in light of all the other evidence adduced at trial." Id. at 612-13. And we do not apply the separate harmless error standard for reversal for constitutional error contained in rule 44.2(a) of the Texas Rules of Appellate Procedure. Id. at 612.
On appeal, the State argues appellant was aware of the exculpatory information, and his medical records were fully accessible to him. It also argues appellant waived any Brady complaint by not seeking a continuance. Finally, it contends appellant has failed to show the county jail medical records were material. We focus on the States contention regarding materiality, and do not address the others. 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. Hampton, 86 S.W.3d at 612; West v. State, No. 10-07-00100-CR, 2008 Tex.App. LEXIS 9062, at *5-6 (Tex.App.Waco Dec. 3, 2008, pet. dismd) (mem. op., not designated for publication). Rather, the inquiry is whether the States failure to disclose the evidence undermines confidence in the jurys verdict. Lempar v. State, 191 S.W.3d 230, 241 (Tex.App.San Antonio 2005, pet. refd); Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App. 1992).
Appellant contends the county jail medical intake record was material to his self-defense claim because it documented he was bruised at the time he entered the jail. He argues the State tried to cast doubt on his injuries. Appellant highlights the two statements in the States closing argument in which the prosecutor said appellant never complained of any injuries and decided that maybe he was injured after his arrest. He also points us to the responding officers testimony that he did not see any injuries on appellant the night of the altercation. Appellant asserts if the jury knew that a sheriffs office employee was aware appellant complained of bruises before appellant left the custody of law enforcement but after the altercation, there is a reasonable probability the jury would have concluded the State had failed to disprove he acted in self-defense.
We find the trial court reasonably could have concluded the county jail medical history notations of appellants bruises were not material under Brady. The reasonableness of appellants response to his girlfriends actions was the central focus of the trial. Although the State disparaged the effectiveness of the girlfriends blows, it did not dispute the existence of appellants bruises. During her testimony, the girlfriend admitted she may have struck him with her hands, feet and knees. The jury also heard from the physician, without objection, that he observed bruising on appellants right upper arm, right clavicle and right thigh when he examined him five days after the altercation. The doctors medical notes documenting the bruises were admitted into evidence along with pictures of each bruise. The bruises the doctor noted were in the same locations as those referred to in the jail medical history.
The officer responding to the 911 calls both appellant and the girlfriend made testified he did not see any injuries on appellant the night of the altercation, took appellant at his word that he was not injured, and did not believe appellant had been hit by his girlfriend. But he also acknowledged some injuries do not become visible until later. The trial court could have considered it clear that the officers testimony was based on his observations shortly after the altercation.
The absence of jailhouse documentation of appellants bruises did not keep him from presenting his claim of self-defense to the jury. The trial court reasonably could have considered the evidence was cumulative of the evidence of bruising appellant introduced through the doctors testimony and the photographs he identified. See, e.g., McDonald v. State, No. 04-05-00128-CR, 2006 Tex.App. LEXIS 7416, at *15-16 (Tex.App.San Antonio Aug. 23, 2006, no pet.) (mem. op., not designated for publication) (finding asserted Brady evidence similar to other evidence seen by jury and thus not material).
As noted, appellants claim of self-defense raised the issue whether his use of force against his girlfriend was justified by his reasonable belief it was immediately necessary to protect himself against her use of unlawful force. The jury found the State had disproved that contention beyond a reasonable doubt. Under his contention on appeal, to satisfy his burden to demonstrate the materiality of the county jail medical history records, appellant was required to show the trial court there was a reasonable probability the jury would have reached a contrary decision if he had been provided with the records before trial. Viewing the entire record in the light most favorable to the trial court's ruling, it did not abuse its discretion by finding appellant had failed to show such a reasonable probability. The court did not err by denying appellants motion for new trial. We resolve appellants sole issue against him and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
[1] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[2] The record also contains evidence of an injury near appellants left eye. His girlfriend admitted to throwing a yogurt carton at appellant, striking his left eye. The jury also saw appellants booking photograph introduced by the defense at trial. Defense counsel asked the College Station police officer, referring to the photograph, if a slightly red mark on appellants eye might indicate he was struck. Defense counsel again referenced the booking photograph in his closing argument at the guilt innocence phase, noting [t]he eye looks red. Looks to be a mark on the right inside of the eye.