Christopher Leverson v. State

ACCEPTED
03-15-00090-CR
5205188
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/8/2015 9:48:21 AM
JEFFREY D. KYLE
CLERK
NO. 03-15-00090-CR, 03-15-00091-CR, 03-15-00092-CR

IN THE COURT OF APPEALS FILED IN
FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS 5/8/2015 9:48:21 AM
JEFFREY D. KYLE
Clerk
CHRISTOPHER LEVERSON
Appellant
v.
THE STATE OF TEXAS
Appellee

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 1
TRAVIS COUNTY, TEXAS

APPELLEE'S BRIEF

Respectfully Submitted,

Karen Kennard
City Attorney
State Bar No. 11280700

Matthew McCabe
Assistant City Attorney
State Bar No. 24053347
City of Austin
P.O. Box 2135
Austin, Texas 78768
512-97 4-4804 [phone]
512-974-1244 [fax]
Matthew .mccabe@ austintexas .gov
 11

IDENTITY OF THE PARTIES AND COUNSEL

The following is a complete list of parties and counsel:

Appellant: Appellee:

Christopher Leverson THE STATE OF TEXAS
3 13 Middle Lane
Austin, Texas 78753 Represented on appeal by:
512-990-1568
admin@wirelesselevation.com Matthew McCabe
Assistant City Attorney
State Bar No. 2405334 7
City of Austin Law Department
P.O. Box 2135
Austin, Texas 78768
Telephone: 512-974-4804
Facsimile: 512-97 4-1244

Karen Kennard
City Attorney
State Bar No. 11280700
 Ill

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................. ii

TABLE OF AUTHORITIES ........................................ .iv

STATEMENT OF THE CASE ....................................... vii

STATEMENT OF THE FACTS ....................................... 1

ISSUES PRESENTED .............................................. .3

SUMMARY OF THE ARGUMENT ................................... 3

ARGUMENT

ISSUE I- THE AUSTIN MUNICIPAL COURT DID NOT VIOLATE THE
APPELLANT'S DUE PROCESS RIGHTS BY OPERATING
CENTRALIZED DOCKETS ..................................... 5

ISSUE II - THE APPELLANT WAS PROPERLY CHARGED BY
COMPLAINT AND PROPERLY NOTICED OF THE CHARGES
AGAINST HIM ............................................... 7

ISSUE III- THE MUNICIPAL COURT OF AUSTIN HAS PERSONAL
AND SUBJECT MATTER JURISDICTION TO HEAR CASES ARISING
OUT OF CLASS C MISDEMEANORS WITHIN THE CITY OF AUSTIN,
TEXAS ..................................................... 10

ISSUE VI- APPELLANT'S RIGHT AGAINST SELF-INCRIMINATION
WAS NOT ABRIDGED ...................................... 12

ISSUE V- PROSECUTION IS EXEMPTED FROM PROVIDING WORK-
PRODUCT DOCUMENTS IN RESPONSE TO DISCOVERY AND ANY
OMISSION RESULTED IN HARMLESS ERROR.................. 13

PRAYER ........................................................ 22

CERTIFICATE OF SERVICE ........................................ 23
 lV

TABLE OF AUTHORITIES

CASES PAGE

State v. Herndon
215 S.W.3d 901, 907 (Tex. Crim. App. 2007) ....................... .4

Ramirez v. State
301 S.W.3d 410,415 (Tex. App. -Austin 2009, no pet.) ............... .4

Holden v. State
201 S.W.3d 761, 763 (Tex. Crim. App. 2006) ........................ 5

Huynh v. State,
901 S.W.2d 480 (Tex. Crim. App. 1995) ... .... ...... . ......... . .... 7

State v. Blankenship
170 S.W.3d 676, 681 (Tex. App.-Austin 2005, pet. ref d) ............. 7

Schinzing v. State
234 S.W.3d 208 (Tex. App.-Waco 2007) .......................... 7

Lawrence v. State
240 S.W.3d 912, 916 (Tex. Crim. App. 2007) ........................ 8

State v. Moff,
154 S.W.3d 599, 601 (Tex. Crim. App. 2004) ........................ 8

Palma v. State
2004 WL 1470911 (Tex. App. -Houston [1st District] July 1, 2004, no pet.)
(mem. Op., not designated for publication) ................................ 9

Naffv. State
946 S.W.2d 529, 533 (Tex. App.- Fort Worth 1997, no pet.) .......... 10

Kothe v. State
152 S.W.3d 54, 63 (Tex. Crim. App. 2004) ........... . ............. 12

Ex Parte Miles
 v

359 S.W.3d 647, 670 (Tex. Crim. App. 2012) ...................... 14

Washington v. State
856 S.W.2d 184, 187 (Tex. Crim. App. 1993) ...................... 14

McCloud v. State
494 S.W.2d 888 (Tex. Crim. App. 1973) .......................... 14

Vasquez Garza v. State
794 S.W.2d 530, 535 (Tex. App. -Corpus Christi 1990) .............. 14

Hart v. State
447 S.W.2d 944, 948 (Tex. Crim. App. 1969) ...................... 14

Strickland v. Washington
466 U.S. 668 (1984) .......................................... 15

United States v. Bagley
473 u.s. 667 (1985) .......................................... 15

Cook v. State
940 S.W.2d 623 (Tex. Crim. App. 1996) .......................... 15

Thomas v. State
841 S.W.2d 399 (Tex. Crim. App. 1992) .......................... 15

Hampton v. State
86 S.W.3d 603, 612 (Tex. Crim. App. 2002) ....................... 15

United States v. Agurs
427 u.s. 97, 109 (1976) ....................................... 16

Campos v. State
468 S.W.3d 81, 83 (Tex. Crim. App. 1971) ........................ 17
 vi

STATUTES, RULES, AND CODES

United States Constitution
Amendment VI ................................................ 8

Texas Constitution
Article I, Section 10 ............................................ 8
Article XIV, Section 1 ......................................... 10

Texas Code of Criminal Procedure
Section 4.14(b) ............................................... 11
Section 39.14(a) .............................................. 15
Section 45.018 ................................................. 7
Section 45.019(a) .............................................. 9

Texas Government Code
Section 30.00014(b) .......................................... 4
Section 30.00007 (b )(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 5
Section 30.00021(b)......................................... 5

Texas Transportation Code
Section 502.401. .............................................. 11
Section 502.407 ............................................... 11
Section 521.025(a)(2) ......................................... 12
Section 541.001(1) ............................................ 10
Section 541.201(11) ........................................... 10
 Vll

STATEMENT OF THE CASE

Nature of the case: This is an appeal from a county court decision affirming
a guilty verdict. Appellant Christopher Leverson was
charged by citation on December 20, 2012, and received
a jury trial before the Austin Municipal Court on
February 19, 2014. After his conviction and the denial of
his motion for new trial, he appealed to County Court at
Law No. 1 of Travis County. His conviction was
affirmed, and he appeals again.

Trial court disposition: Appellant had multiple motions for dismissal denied by
the trial court before his trial by a jury, which found him
guilty of Expired Registration, Failure to Maintain
Financial Responsibility and Failure to Display Driver's
License on February 19, 2014. Appellant's motion for
new trial was timely filed on February 28, 2014, and was
overruled by operation of law on March 31, 2014, by the
same judge who presided over the trial. Appellant then
appealed to the county court and now to this Court.

Relief sought: Appellee requests that this Court affirm the judgment of
guilty on all cases entered on February 19, 2014, and the
total fine in the amount of $954.00.

Citations: CR refers to the Clerk's Record and RR refers to the Reporter's Record.
 1

TO THE HONORABLE COURT:

COMES NOW, the State of Texas, Appellee, and files this brief, and in

support thereof would show the Court as follows:

STATEMENT OF THE FACTS

Appellant, Christopher Leverson, was charged by complaint with operating a

motor vehicle with an expired registration. [CR 7]. The case proceeded to jury

trial on that February 19, 2014 with Judge Sherry Statman presiding. [CR 117]. At

the conclusion of the trial, the jury returned a verdict of "guilty" and a fine in the

amount of $200.00. [CR 117]. An order was signed on February 19, 2014

adjudging Appellant to be guilty of the offense charged in the complaint, and

setting the punishment at a sum of $268.00, including fine and court costs. [CR

117]. Appellant filed a First Motion for New Trial on February 28, 2014. [CR

120A-120GGGG]. The motion was overruled by operation of law on March 31,

2014. [CR 121]. On April 7, 2014 Appellant filed a Written Notice of Appeal with

County Court at Law No. 1. [CR 123A-N]. In an Opinion and Judgment dated

December 18, 2014, the convictions of the Appellant.

Appellant, Christopher Leverson, was charged by complaint with failure to

maintain financial responsibility. [CR 7]. The case proceeded to jury trial on that

February 19, 2014 with Judge Sherry Statman presiding. [CR 117]. At the

conclusion of the trial, the jury returned a verdict of "guilty" and a fine in the
 2

amount of $350.00. See Appellant's Brief Appendix. An order was signed on

February 19, 2014 adjudging Appellant to be guilty of the offense charged in the

complaint, and setting the punishment at a sum of $418.00, including fine and

court costs. See Appellant's Brief Appendix Appellant filed a First Motion for New

Trial on February 28, 2014. [CR 120A-120GGGG]. The motion was overruled by

operation of law on March 31, 2014. [CR 121]. On April 7, 2014 Appellant filed a

Written Notice of Appeal with County Court at Law No. 1. [CR 123A-N]. In an

Opinion and Judgment dated December 18, 2014, the convictions of the Appellant.

Appellant, Christopher Leverson, was charged by complaint with failure to

display driver's license. [CR 7]. The case proceeded to jury trial on that February

19, 2014 with Judge Sherry Statman presiding. [CR 117]. At the conclusion of the

trial, the jury returned a verdict of "guilty" and a fine in the amount of $200.00.

See Appellant's Brief Appendix. An order was signed on February 19, 2014

adjudging Appellant to be guilty of the offense charged in the complaint, and

setting the punishment at a sum of $268.00, including fine and court costs. See

Appellant's Brief Appendix. Appellant filed a First Motion for New Trial on

February 28, 2014. [CR 120A-120GGGG]. The motion was overruled by

operation of law on March 31, 2014. [CR 121]. On April 7, 2014 Appellant filed a

Written Notice of Appeal with County Court at Law No. 1. [CR 123A-N]. In an

Opinion and Judgment dated December 18, 2014, the convictions of the Appellant.
 3

APPELLEE'S ISSUES PRESENTED FOR REVIEW

ISSUE I - THE AUSTIN MUNICIPAL COURT DID NOT VIOLATE THE
APPELLANT'S DUE PROCESS RIGHTS BY OPERATING CENTRALIZED
DOCKETS .............................................................. 7

ISSUE II - THE APPELLANT WAS PROPERLY CHARGED BY COMPLAINT AND
PROPERLY NOTICED OF THE CHARGES AGAINST HIM .................... 9

ISSUE III - THE MUNICIPAL COURT OF AUSTIN HAS PERSONAL AND
SUBJECT MATTER JURISDICTION TO HEAR CASES ARISING OUT OF CLASS C
MISDEMEANORS WITHIN THE CITY OF AUSTIN, TEXAS .................. 11

ISSUE VI- APPELLANT'S RIGHT AGAINST SELF-INCRIMINATION WAS NOT
ABRIDGED ........................................................... .13

ISSUE V - THE STATE PROPERLY RESPONDED TO THE DEFENDANT'S
DISCOVERY REQUEST FOR THE INCIDENT REPORT ...................... 15

SUMMARY OF THE ARGUMENT

The Judgment of the trial court adjudging Appellant "guilty" of all three

aforementioned offenses should be affirmed because the prosecution was properly

conducted by the assistant city attorneys of the City of Austin, Texas in the

Municipal Court of the City of Austin, Texas. Appellant was properly noticed of

the criminal charges against him upon the filing of the complaint in the Municipal

Court, which had subject matter and in personam jurisdiction to hear Appellant's

criminal trial based upon a statutory grant of authority coupled with a charging

instrument invoking that authority over the case. The State of Texas had the power

to regulate driving on state highways and had the power to prosecute Appellant in
 4

the Municipal Court for violations of state law alleged to have been committed

within its territorial limits.

The appellant argues fervently that the State erred by not providing him with

a copy of the incident report. However, the Clerk's Record proves that the

appellant received the incident report that the State's witness was using to refresh

his recollection over six months before the date of trial. Additionally, the appellant

was given another copy of the incident report at trial and given time to review it.

The court properly utilized it's discretion to grant the appellant the lunch hour to

review the incident report. All three convictions should be affirmed.

STANDARD OF REVIEW

Each appeal from a municipal court of record conviction shall be determined

by the appellate court based on errors that are set out in an appellant's motion for

new trial. Tex. Gov't Code Ann. § 30.00014(b) (West 2011). Where appellate

arguments were substantially raised in a motion for new trial, which was denied,

the appropriate standard of review on appeal is abuse of discretion. See State v.

Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007); Ramirez v. State, 301

S.W.3d 410, 415 (Tex. App.-Austin 2009, no pet.). A trial court abuses its

discretion in denying a motion for new trial only when no reasonable view of the
 5

record could support the trial court's ruling. Holden v. State, 201 S.W.3d 761, 763

(Tex. Crim. App. 2006).

RESPONSE TO APPELLANT'S ISSUE I ARGUMENT

In issue 1 the appellant argues that the "round robin" style of adjudication of

his case violated his due process rights. The appellant argues that the process of the

Austin Municipal Court is in conflict with Govt. Code Chapter 30.00007. The code

requires that the court have a presiding judge and prescribes the duty of that

presiding judge. What the appellant refers to as "round-robin" is actually a central

docket. The code specifically states that the presiding judge is to maintain a central

docket and then "provide for the distribution of cases from the central docket to the

individual municipal judges to equalize the distribution of business in the courts".

Govt. Code Chapter 30.00007(b)(2). The appellant seems to read his own

definition into this requirement. He argues that a specific judge should have been

assigned to his case and that not doing so is a violation of this code. However, the

code does not state the method by which the cases shall be distributed. The process

at Austin Municipal Court does ensure that cases are distributed to the individual

judge who is presiding over that particular docket.

The Austin Municipal Court has several full-time and part-time judges.

These judges preside over the Court's dockets and they may preside over different

dockets each week. Thus, one judge may preside over a pre-trial hearing and
 6

another presides over the trial. Nevertheless, each Defendant usually has one judge

preside over any particular stage and that judge is assigned to the cases on that

docket. That judge hears the entirety of that stage in the case. Judge Statman was

the presiding judge for the entirety of appellant's trial. There is no due process

violation simply because different judges heard different stages of the case. Due

process does not require that a Defendant have one judge hear his case in its

entirety and the appellant cites no statutory authority or case law for this

proposition. The appellant is certainly entitled to a fair trial and that is what he

received.

It should also be noted that the appellant complains about having different

judges hear different stages of his case, but the he created the circumstances that

would ensure that his case to be heard by a judge other than the one who signed the

order during his pre-trial. Judge Solomon made pre-trial rulings in the appellant's

case. The appellant filed a judicial conduct complaint against Judge Solomon. He

also filed a motion to disqualify Judge Solomon. [CR 32] In response, Judge

Solomon voluntarily recused himself. [CR 46]. Thus, it is disingenuous for the

appellant to now argue that one judge should have heard every stage of his case to

its completion. He initiated events that ensured that the same judge who presided at

his pre-trial hearing could not preside at his trial.
 7

Finally, the appellant argues that he was harmed by having different judges preside

over different stages of his case. Specifically, he points to the ruling of Judge

Statman at trial that the incident report used by the State's witness was work-

product. There was no harm to appellant due to the court's ruling regarding the

incident report and this issue is addressed in more detail in Issue V of this brief.

This Court should overrule the appellant's first point of error.

RESPONSE TO APPELLANT'S ISSUE II ARGUMENT

In issue 2, Appellant argues that a complaint, alone, does not meet the

requirements of a proper charging instrument that would give the court

jurisdiction. Additionally, appellant argues that a complaint does not satisfy the

right of a defendant to know the nature and cause of the charges made against him.

Both of these arguments are unfounded.

A criminal complaint "serves as the sole charging instrument in municipal

court." See Tex. Code Crim. Proc. art. 45.018(a); Huynh v. State, 901 S.W.2d 480,

481 n.3 (Tex. Crim. App. 1995); State v. Blankenship, 170 S.W.3d 676, 681 (Tex.

App.-Austin 2005, pet. ref d); Schinzing v. State, 234 S.W.3d 208 (Tex. App.-

Waco 2007). Chapter 45.018 of the Texas Code of Criminal Procedure grants

defendants a right to have a criminal complaint filed at least one day prior to any

proceeding of the prosecution of the defendant, but does not require any service of
 8

the complaint upon the named defendant. Tex. Code Crim. Proc. 45.018.

Complaints for the cases arising from the Appellant's 2012 citation were filed on

December 21, 2012, over one year prior to the Appellant's trial. [CR 7] This more

than satisfies the one day filing requirement set forth in the Code of Criminal

Procedure.

Appellant was properly noticed of the criminal charges against him upon the

filing of the complaints in the Municipal Court of the City of Austin, Texas.

Appellant, as a criminal defendant, has a right to notice under the United States

and Texas Constitutions. See U.S. Const. amend. VI, Tex. Const. art. I, Sec. 10;

see also Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007).

However, this right to notice does not entitle Appellant to be "served" with the

complaint. Notice refers to adequate specificity of the charging instrument. To

satisfy this notice requirement, the charging instrument must be "specific enough

to inform the accused of the nature of the accusation against him so that he may

prepare a defense." State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

Notice does not refer to a particular method used to inform the accused of pending

criminal charges.

In municipal court prosecutions, the complaint is the charging instrument

that charges the accused with the commission of an offense. Tex. Code Crim.

Proc. Ann. Art. 45.018. Notice of the charges are given by the filing of the
 9

complaint with the clerk of the court. "Notice of the nature and cause of an action

against a criminal defendant is accomplished by the filing of a charging instrument

if the charging instrument is sufficient to give the accused adequate notice of the

acts he allegedly committed, to bar a subsequent prosecution for the same offense,

and to give the accused notice of the precise offense with which he is charged."

Palma v. State, Nos. 01-04-00206-CR, 00207-CR, 00208-CR, 2004 WL 1470911,

*3 Tex. App.-Houston [1st District] July 1, 2004 no pet.) (mem. op., not designated

for publication).

A complaint is sufficient if it substantially satisfies the requisites of Article

45.019 ofthe Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. Art.

45.019(a). All three complaints against Appellant satisfy these requisites because

(1) they are in writing; (2) they commence "In the name and by the authority of the

State of Texas"; (3) they states the name of the accused; (4) they state that the

affiant has good reason to believe and does believe that the accused has committed

an offense against the law of the State of Texas; (5) they state the date of the

offense was committed; (6) it bears the signature of the affiant; and (7) they

conclude with the words "Against the peace and dignity of the State." [CR 7].

Appellant was properly noticed of the complaint against him. Thus, the Austin

Municipal Court possessed subject matter jurisdiction in this case and the

appellant's second point of error should be overruled.
 10

, RESPONSE TO APPELLANT'S ISSUE III ARGUMENT

In Issue 3, the appellant argues that the municipal court lacked personal

jurisdiction because he was not engaged in transportation and the court lacked

standing. The appellant's argument that the Court did not have jurisdiction because

he was not engaged in transportation is incorrect.

Appellee has the authority to prosecute Appellant in the Municipal Court of

the City of Austin, Texas for violations of state law alleged to have been

committed within its territorial limits and the Austin Municipal Court has authority

to hear such cases. The State of Texas has the power to regulate driving on state

highways and assistant city attorneys have the power to prosecute violations of

those regulations. Driving on Texas highways is a privilege and not a right, and is

subject to reasonable regulation under the State's police power. Naffv. State, 946

S.W.2d 529, 533 (Tex. App.- Fort Worth 1997, no pet.). Subtitle C of Title 7 of

the Texas Transportation Code provides these "Rules of the Road." Chapter 541

provides the definitions for specific terms used within the subtitle. The term

"operator" means, "as used in reference to a vehicle, a person who drives or has

physical control of a vehicle." Tex. Transp. Code Sec. 541.001(1). The term

"motor vehicle" means "a self-propelled vehicle or a vehicle that is propelled by

electric power from overhead trolley wires ... [not including] an electric bicycle or

an electric personal assistive mobility device." Tex. Transp. Code Sec.
 11

541.201 ( 11 ). The term "transportation" is not defined in this chapter and therefore

has no specialized definition.

Appellant was charged by complaint with operating a motor vehicle on a

public highway after the fifth working day after the date the registration for the

vehicle expired, failure to display a driver's license and failure to maintain

financial responsibility within the territorial limits of the City of Austin, Texas.

[CR 7]. Appellant did not need to be actively engaged in commerce or in the

movement of goods to be subject to the laws of the State of Texas prescribing the

"Rules of the Road" within the Texas Transportation Code.

The complaints allege a violation of state law under the Texas

Transportation Code, a misdemeanor, which is punishable by fine only. See Tex.

Transp. Code Sees. 502.401, 502.407. The Texas Code of Criminal Procedure

establishes that a municipal court has concurrent jurisdiction with the justice court

of a precinct in which the municipality is located in all criminal cases arising under

state law that arise within the municipality's territorial limits and that are

punishable by fine only. Tex. Code Crim. Proc. Ann. Art. 4.14(b). The appellant's

argument that the state was required to demonstrate that the defendant was

engaged in a form of commercial transportation is not supported by any statutory

or judicial authority and the appellant's third point of error should be overruled.
 12

RESPONSE TO APPELLANT'S ISSUE IV ARGUMENT

In issue 4, the appellant argues that he did not have to display his driver's

license because to do so would violate his right against self-incrimination. It is well

settled law that a traffic stop might include investigation such as a check of the

driver's license and financial responsibility. Kothe v. State, 152 S.W.3d 54, 63

(Tex. Crim. App. 2004). Pursuant to Tex. Transp. Code Ann. § 521.025 (a)(2), a

driver is required to present a driver's license upon request of a peace officer.

Requiring that a driver produce a driver's license is not a violation of the person's

fifth-amendment protections. As previously stated, driving on Texas roads is a

privilege. Naff, supra 946 S.W. at 533. If a person chooses to drive in Texas, they

are required to present a driver's license to an officer if requested during a traffic

stop.

The appellant was pulled over for having expired motor vehicle registration.

[RR 102-103]. The appellant refused to produce his driver's license during a

legitimate traffic stop and was subsequently arrested. [RR 132-133]. One of the

arresting Officers was able to locate a license in the Defendant's vehicle during the

stop. [RR 95]. The appellant argues that he should not have been charged for

invoking his constitutional protections. Notwithstanding the fact that the appellant

misapplies fifth-amendment right against self-incrimination in this case, the
 13

appellant fails to acknowledge that had a license not have been located, he would

have still been identified and charged.

The appellant argues that he was not engaged in transportation and thus he

was not required to present documentation to the Officers who conducted the stop.

As the initial appeals court noted, production of the documents would have

actually exonerated the appellant. Displaying his driver's license and producing

proof of financial responsibility would have halted the citing of the appellant for

those offenses. A person's vehicle registration is usually displayed on the front

windshield, so the violation for that offense was in the plain view of the Officers.

In fact, that the expired registration was the basis for the stop. Thus, there was no

offense that would make the fifth-amendment protections against self-

incrimination relevant in this case. The appellant's belief that production of these

documents could be incriminating was unreasonable. The appellant's fourth point

of error should be overruled.

RESPONSE TO APPELLANT'S ISSUE V ARGUMENT

1. Incident reports prepared by the police through investigation constitute work-
product of the State.

In Issue 9, Appellant argues that he was entitled to receive a copy of an

incident report (hereinafter "report") pursuant to his discovery motion. See

Appellant Brief 48-51. Prosecution is not required to disclose documents that
 14

constitute work-product. Tex. Code Crim. Proc. 39.14 (a). Incident reports

prepared by the police through investigation or as offense reports constitute work-

product of the State. Ex Parte Miles, 359 S.W. 3d 647, 670 (Tex. Crim. App.

2012); Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993);

McCloud v. State, 494 S.W.2d 888, 892 (Tex. Crim. App. 1973); Vasquez Garza v.

State, 794 S.W.2d 530, 535 (Tex.App.-Corpus Christi 1990). Hart v. State, 447

S.W.2d 944, 948 (Tex. Crim. App. 1969). Judge Statman properly ruled that the

police report constituted work-product of the State and that disclosure was not

required. [RR 123]. Moreover, the incident report used by Officer Vest was simply

used to refresh his memory of the events and the report was not used as evidence

against the appellant. [RR 119]. Meaning, the report was not marked as an exhibit

and published for the jury. It was used in the same manner in which a citation

would be used by an Officer; it helped him recall the details of the event. The State

was required to produce the report upon request from the appellant at trial since it

was used to refresh the witness' recollection. However, the State did so and the

appellant had the report to use during the trial.

2. The Appellant was not harmed by the use of the incident report to refresh
the witness' recollection.

The State is required to disclose documents that contain Brady material even

if those documents would otherwise be protected under the work-product privilege.
 15

Ex Parte Miles, 359 S.W. 3d 647, 670 (Tex. Crim. App. 2012). This is information

that is exculpatory or favorable to the accused, and material. Id. Impeachment

evidence receives the same treatment as exculpatory information. Strickland v.

Washington, 466 U.S. 668, 694 (1984); United States v. Bagley, 473 U.S. 667,

676-683 (1985). In Bagley, the court relied on the Strickland test to determine if

information was material and stated, "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." Bagley, 473 U.S. at 682;

Strickland, 466 U.S. at 694; See Cook v. State, 940 S.W. 2d 623 (Tex. Crim. App.

1996); See also Thomas v. State, 841 S.W. 2d 399, 403-407 (Tex. App. Crim.

1992). The incident report did not contain any favorable evidence to the appellant

nor did it contain any material evidence that would have affected the outcome of

the trial. To find reversible error under Brady and Bagley, 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;

3) the evidence is material, that is, 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).
 16

Under Brady, the defendant bears the burden of showing that, in light of all

the evidence, it is reasonably probable that the outcome of the trial would have

been different had the prosecutor made a timely disclosure. Id. "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." United States v. Agurs, 427 U.S. 97, 109 S.Ct. 2392 49

L.Ed.2d 342 (1976).

In past cases, Texas courts have addressed the issue of whether it is harmless

error when the State fails to disclose an incident or offense report made by a police

officer. In McCloud v. State, 494 S.W.2d 888 at 892, the state did not produce the

police officer offense report during pre-trial discovery after a discovery order to

produce all relevant evidence. Id. The offense report was then used at trial to

refresh the officer's memory and was made available to appellant for cross-

examination and possible impeachment. Id. The appellant argued that the court

committed reversible error by allowing the oral testimony of the officer after using

the police report to refresh his memory. Id. at 891. The appellant argued that the

use of the offense report was improper because the existence of the offense report

had been specifically denied by the prosecution. Id.

The court held that it was not reversible error because the offense report was

not introduced into evidence but merely used by the witness to refresh his memory
 17

and, on cross-examination, was made available to defendant for possible

impeachment purposes. Id. at 892. Moreover, the court stated that there was no

misconduct by the State in failing to produce the offense report because the order

granting discovery was not subject to interpretation as requiring production the

offense report. Id.

As in McCloud, the use of the incident report at trial was harmless error, if

any, because the report was only used to refresh Officer Vest's memory and it was

not entered into evidence. Officer Vest was simply using the report to recall events

that happened two years prior. The offense report was then given to appellant and

he had an opportunity to cross-examine and impeach Officer Vest. The State

properly produced the report to the appellant at trial. Additionally, the appellant

was given a lunch break in order to review the document. In McCloud, there is no

evidence that the appellant was given any type of break to review the offense

report. The appellant in this case argues that a lunch break was not enough time to

read the incident report and prepare a cross-examination or find impeachment

material. However, in Campos v. State, 468 S.W.3d 81, 83 (Tex. Crim. App.

1971 ), the court expressly stated that the Brady case does not allow for

"rummaging" through the state's files in hopes of uncovering some shred of

evidence which might be of assistance. Moreover, it is in the trial court's discretion
 18

to determine what constitutes adequate time to review a writing that is used to

refresh a witnesses recollection.

In Campos, the appellant did not have any opportunity to inspect a police

report and the court still found harmless error. In the case, the appellant requested

in camera inspection of offense reports made by trial witnesses, police officers

Stovall and Petty. Id. The requests were made by the appellant to determine if the

offense reports should be made available to the appellant for cross-examination

and possible impeachment. Id. The court refused to make an inspection. Id. The

court stated that the offense reports should have been made available to appellant

under the 'Gaskin rule.' Id. However, the court held that the error was harmless

because an examination by the Court of Criminal Appeals of the offense reports

revealed that they were entirely consistent with the testimony of the respective

witnesses. Id. at 84. Similar to Campos, the incident report at issue in this case, is

entirely consistent with the testimony of Officer Vest and the video that was played

in front of the jury.

The appellant makes claims that the Prosecutor, Mathew McCabe purposely

withheld the offense report and was lying when he stated that he had not seen the

report. The appellant states that it is "utterly absurd to believe that experienced

prosecuting attorneys, three of them, could be ignorant of an offense report."

Appellant's Brief 17. This statement is false because one of the Prosecutors that he
 19

mentions is the one who delivered the report to him and it misstates the process by

which cases are handled by prosecutors at the municipal court. Three prosecutors

were not working on this case at the same time and they did not all collaborate on

the case and issues. The case was filed in 2012 and finally went to trial in 2014.

Over the span of those two years multiple prosecutors worked on the case and

documents were continuously being added to files over the course of two years.

Given the caseload of each prosecutor, it is not feasible for prosecutors to discuss

every single document included in the case file. In the process of cases being

reassigned and moving from prosecutor to prosecutor, it is entirely possible that a

prosecutor could miss certain items in a file. When Matthew McCabe stated that

he did not know of the incident report he was being truthful. He had no reason to

withhold the incident report and immediately turned it over to the appellant for

cross-examination.

3. Appellant fails to state what information could have been used to impeach

Officer Vest

Appellant must satisfy the three prongs under Brady. Hampton v. State, 86

S.W.3d 603, 612 (Tex. Crim. App. 2002); Ex Parte Miles, 359 S.W. 3d 647, 666

(Tex. Crim. App. 2012). As stated above, the three prongs consist of showing

that the state failed to disclose evidence, the evidence withheld is favorable to
 20

appellant, and the evidence is material. Ex Parte Miles, 359 S.W. 3d 647 at 665.

As to the second prong, appellant must demonstrate that the evidence withheld by

the State is "favorable" to his case. Id. Favorable evidence is that which, if

disclosed and used effectively, "may make the difference between conviction and

acquittal." Id. Favorable evidence includes exculpatory evidence and

impeachment evidence. Id. Exculpatory evidence is that which may justify, excuse,

or clear the defendant from fault, and impeachment evidence is that which

"disputes, disparages, denies, or contradicts" other evidence. Id.

Appellant argues that the report contained information he could have used

for impeachment. Appellant's Brief 36. However, the appellant fails to detail what

information was included in the report that could have resulted in impeachment.

Appellant fails to state what information could be used to "disparage, deny or

contradict" other evidence. Ex Parte Miles, 359 S.W. 3d 647 at 665. For example,

he makes no claim that the officer made incorrect statements about his registration

or driver's license. In fact, he gives no specific details whatsoever on what could

be used as impeachment. Appellant only states that he needed "more than a lunch

hour" to "flush out inherent inconsistencies" with the report. Appellant's Brief 36.

Appellant's inability to articulate what was impeachable demonstrates that there

were no inconsistencies to find. If there were untruthful or inconsistent statements,
 21

the appellant, knowing what took place during the traffic stop, would have been

able to find them in a lunch hour.

Without knowing the information to which the Appellant is referring, it is

impossible for the Appellee or the court to determine if there was indeed

information that could be used to impeach the officer, if the information was

favorable to the accused, or if the information would have been material to the case

of the accused. Appellant has failed to show that producing the incident report

sooner would have resulted in a different outcome. Moreover, there was no

exculpatory infonnation in the police report. The report was just an account of the

events that happened. The issue should be overruled.
 22

PRAYER

Wherefore, the State would, for the reasons stated herein, request that the

Court affirm all three of the Judgments of the trial court adjudging Appellant

"guilty" and imposing a punishments in the sum total of $954.00.

Respectfully Submitted,

Karen Kennard
City Attorney
State Bar No. 11280700

Matthew McCabe
Assistant City Attorney
State Bar No. 24053347
City of Austin
P.O. Box 2135
Austin, Texas 78768
512-97 4-4804 [phone]
512-974-1244 [fax]
matthew .mccabe@austintexas.gov
 23

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the foregoing document contains 7,798
words (excluding the title page), in compliance with Tex. R. App. P. 9.4 .. In
making this certificate of compliance, I am relying on the word count provided by
the software used to prepare the document.

CERTIFICATE OF SERVICE

I hereby certify that on this theS' day of ~A '/ , 2015, a true
and correct copy of the foregoing document has been forwarded to Appellant of
record herein via certified mail, return receipt requested, to:

Christopher H. Leverson
313 Middle Lane
Austin, Texas 787 53
512-990-1568

Matthew McCabe