Phillip Doyle Crenshaw v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

NO. 10-90-065-CR

PHILLIP DOYLE CRENSHAW,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 17,164

OPINION ON REMAND

On July 11, 1991, we affirmed Appellant's murder conviction. The Court of Criminal Appeals has remanded the cause for us to determine whether the State's withholding of the testimony of Evelyn and Dan Jackson contributed to Appellant's punishment. We held in our original opinion that "the newly discovered evidence [i.e., the Jacksons' testimony] was essentially irrelevant and not favorable to Appellant" and, thus, would not have affected the outcome of his "trial."

The Jacksons' testimony and written transcript of their interview with the State's investigator, which had been in the State's possession, were presented to the court as "newly discovered evidence" at the hearing on a motion for a new trial. After listening to their testimony, the testimony of Appellant's trial counsel, and considering the transcript, the court denied the motion. Appellant argues that juror Shirley Williams's affidavit stating that, if she had known of the suppressed evidence, it may have affected her decision on punishment demonstrates that withholding the testimony contributed to his punishment.

When considering newly discovered evidence, the court has "broad discretion to determine the issues, the credibility of the witnesses and whether a different result would occur in the event of a retrial." Ochoa v. State, 653 S.W.2d 368, 372 (Tex. App. San Antonio 1983, no pet.). Furthermore, the denial of a motion for a new trial will not be disturbed unless there was an abuse of discretion. Eddlemon v. State, 591 S.W.2d 847, 849 (Tex. Crim. App. [Panel Op.] 1979).

The Jacksons never mentioned Appellant in their testimony or in the written transcript of the interview, which concerned a conversation they had with Richard and Tiffany Epps. Nor did their testimony corroborate Appellant's contention that he helped dispose of the body after the murder under duress. Under the circumstances, the court could have reasonably found that the evidence was irrelevant and would not have mitigated Appellant's punishment. This finding was reasonable, especially in the light of juror Williams' affidavit in which she merely stated that the evidence may have affected her decision on punishment.

Moreover, the court could have reasonably concluded that the Jacksons' testimony did not constitute newly discovered evidence. For the purpose of obtaining a new trial, evidence is not "newly discovered" if it is known to the defense at the time of the trial. Huffman v. State, 479 S.W.2d 62, 68 (Tex. Crim. App. 1972). Appellant's trial counsel first became aware of the evidence the Jacksons possessed and the written transcript when Dan Jackson approached him while the jury was still deliberating on punishment. The record does not reflect, however, that he ever asked the court to allow Appellant to reopen the evidence on punishment, to present the testimony of the Jacksons, and then to either reargue punishment or allow the jury to resume its deliberations without additional argument.

Based on the record as a whole, we cannot hold that the court abused its discretion when it denied Appellant's motion for a new trial. We affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 19, 1992

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