Jose A. Flores v. The State of Texas--Appeal from 299th District Court of Travis County

Flores IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-155-CR
JOSE A. FLORES,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0912568, HONORABLE JON N. WISSER, JUDGE PRESIDING

Appellant was convicted of the murder of Travis County Corrections Officer William Roderick Redman. Tex. Penal Code Ann. 19.01 (West 1989). Punishment was assessed at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. After appellant's conviction, the prosecutor notified appellant and the trial court that the police had taken a written statement from a trial witness that had not been disclosed to defense counsel prior to trial. Appellant filed a motion for new trial, contending that the statement constituted exculpatory evidence. After a three-day hearing, the trial court denied appellant's motion. We will affirm the conviction.

 
THE CONTROVERSY

The following is derived from testimony presented at trial and during the hearing on appellant's motion for new trial.

At approximately 11:30 p.m. on February 21, 1991, Travis County Corrections Officer William Roderick Redman was beaten to death. His body was found by Austin Police Officer Leon Williams in the parking lot of John Salazar's apartment. Officer Williams found the victim upon arriving at Salazar's apartment, with Salazar in his custody. Officer Williams had taken Salazar into custody nearby for an unrelated incident half an hour earlier.

After the victim's body was discovered, John Salazar was the prime suspect for the murder of Officer Redman. Indeed, Salazar was the only suspect. Salazar was questioned at the scene by Officer Williams, Sergeant Bruce Boardman, and Sergeant Brent McDonald, and told the officers the names of several men and women who had been at his apartment earlier that evening. Salazar, however, claimed to have no knowledge of Redman's murder.

Salazar was taken to the police station for questioning. At approximately 3:30 a.m., Sergeant McDonald and Gary Cutler, a Travis County deputy sheriff, began questioning Salazar. Salazar repeatedly told the officers that he knew nothing about the murder. The officers were reluctant to believe Salazar, however, since he had been the only person found in the vicinity at the time that the murder occurred.

At approximately 10:00 a.m., McDonald began taking a written statement from Salazar. Around 11:20 a.m., after typing about one and one-half pages, McDonald quit taking Salazar's statement because he did not believe Salazar was telling the truth. Sometime later, Sergeant Hector Polanco began questioning Salazar. Other officers testified that Polanco was alone with Salazar while questioning him. (1) Salazar testified that Polanco entered the room, introduced himself, and said that his nickname was "El Diablo," and that he was used in special cases like this one. Although, according to Salazar, Polanco did not "verbally abuse" him, Polanco "intimidated" him.

At some point during the interview, Polanco began taking down a written statement from Salazar. Polanco typed the statement on the same sheet that McDonald had begun, picking up where McDonald had left off. According to the statement taken by Polanco, Salazar had witnessed the entire assault. Salazar later testified that this portion of the statement was "invented" and was pure "fiction." Salazar testified that he invented some portions of the statement himself, while other parts were generated by suggestive questions from Sergeant Polanco. When asked why he had given a false statement with such detail regarding things of which he had no knowledge, Salazar explained that he hoped the police would check them out and find them to be false. Salazar hoped that the police then would finally believe that he indeed knew nothing about the murder. The face of the statement indicates that Salazar signed it at 2:17 p.m., before two witnesses.

While Salazar was being questioned, Sergeant Boardman and Deputy Cutler were questioning appellant and Ernest Perez in New Braunfels. Sergeant Boardman and Deputy Cutler had left for New Braunfels at about 6:30 a.m., after receiving word that several of the persons that Salazar named as having been at his apartment were in custody. Boardman and Cutler obtained confessions from both appellant and Perez.

At some point during the afternoon after the confessions were obtained, Boardman telephoned the Austin Police Department to tell the other homicide officers that he and Cutler had solved the case. Boardman did not remember who he talked to on the phone. After describing the confessions, the person on the other end of the line told Boardman that a statement had been taken from Salazar that described a different chain of events. Boardman responded that the statement could not be correct; appellant and Perez both indicated that Salazar could not have witnessed the murder because he was being questioned by Officer Williams when the murder occurred. Boardman stated that he said something to the effect of, "You better take that one back." However, Boardman testified that he did not intend his statement to be understood as an instruction to hide the Salazar statement.

Appellant was tried for the murder of Officer Redman. Sergeant McDonald testified during appellant's trial that he did not have Salazar sign a written statement. Sergeant Polanco also testified at appellant's trial, stating that he never took a written statement from Salazar. Appellant was convicted of murder on January 8, 1992. Perez was later tried and convicted of aggravated robbery and murder in a separate trial. (2)

Several months after appellant's trial, Sergeant McDonald found the Salazar statement while cleaning a file cabinet in the police station. Believing that the statement was evidence favorable to appellant, McDonald immediately turned it over to the prosecutor, who in turn informed the trial court and defense counsel. The written statement was stapled together with other material. At the top of one of the pages was the handwritten notation, "Not needed, homicide, TCSO." McDonald stated that this was his handwriting, but he did not recall writing it. Furthermore, McDonald stated that he had no memory of having made a conscious decision to "hide" or "get rid of" the statement.

Both appellant and Perez filed motions for new trial, contending the Austin Police Department had suppressed exculpatory evidence. After conducting a joint three-day hearing for both appellant and Perez, the trial court overruled both motions for new trial. The trial court made the following conclusions of law:

 

1. In the trials of defendants Jose Flores and Ernest Perez the State failed to furnish the defense counsel with John Salazar's written statement. This failure was not the result of prosecutorial misconduct but of the failure of the officers who obtained Salazar's statement to reveal its existence.

 

2. The written statement of John Salazar differed from the testimony that he gave at the defendants' trials and thus should be categorized as impeachment evidence, and as such, should be considered favorable to the accused.

 

3. The convictions of the two defendants was (sic) based on their confessions, the testimony of a number of eye-witnesses, expert witness testimony, and a very graphic array of real and photographic evidence. John Salazar's testimony was not essential to the State's case, and even if he had been impeached by his prior inconsistent statement, this would of (sic) been of little significance. Having presided over both these trials, I find that the undisclosed statement of John Salazar was not material. Even if the statement had been given to the defense counsel there is no reasonable probability that the result would have been different. I conclude that the evidence not revealed by the State in these cases does not undermine my confidence in the verdicts returned in each case.

 

Appellant appeals his conviction and the trial court's denial of his motion for new trial, raising three points of error.

 
DISCUSSION

In appellant's first and second points of error, he contends that the trial court erred by not granting a new trial because the state withheld exculpatory evidence--the Salazar statement--and thereby denied appellant due process under the Fifth and Fourteenth Amendments of the United States Constitution, and due course of law under article I, section 19 of the Texas Constitution. We will address these points together. See Ex parte Adams, 768 S.W.2d 281, 293 (Tex. Crim. App. 1989) (stating that due process principles requiring disclosure of evidence mandated by the Fourteenth Amendment "are equally applicable to the due course of law rights identified in Art. I, 19 of the Texas Constitution").

Under the rule set forth in Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor has an affirmative duty to turn over exculpatory evidence to defense counsel. It is the character of the evidence, not necessarily the character of the prosecutor, that dictates the fairness of a trial. Ex parte Adams, 768 S.W.2d at 293. Texas utilizes a three-part test to determine whether a defendant has been deprived of a fair trial by the nondisclosure of evidence:

 

(1) Has there been a failure to disclose evidence?;

 

(2) Is that evidence favorable to the accused?; and

(3) Does that evidence create a probability sufficient to undermine the confidence in the outcome of the proceeding?

 

Ex parte Mitchell, 853 S.W.2d 1, 4 (Tex. Crim. App.), cert denied, 114 S. Ct. 183 (1993); Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992).

The trial court concluded that even if the Salazar statement had been given to defense counsel, there was not a reasonable probability that the result of appellant's trial would have been different because of the extensive evidence supporting appellant's conviction. We agree.

The conviction was based on appellant's confession, the testimony of several eyewitnesses, and physical evidence. The following excerpt is from appellant's confession to his part of the beating which resulted in the death of Officer Redman:

 

I ran into a white guy in the parking [lot]. I tried to talk to this guy, he kind of like brushed me off, I grabbed him and hit him when he tried to walk away. He tried to walk away a couple of times. I grabbed him on the shoulder, he knocked my arm away so I hit him. He then tried to get away from me. After I hit him three times he fell down. I picked him up, I started to hit him some more. I was already mad because he tried to walk away from me. I had never met this man before . . . . After he was down I kicked this man a couple of times to the head.

 

Appellant does not challenge the above confession as being coerced or involuntary.

Several eyewitnesses testified at appellant's trial. Monica Lopez testified that she saw appellant and Perez start the fight by hitting the victim in the face with their fists. She saw the victim either fall down or pulled down, and then saw both appellant and Perez kicking the victim, while the victim curled up and attempted to protect his face. Lopez further testified that when Perez returned to the apartment and told everyone they had just killed a cop, she could still see appellant outside, jumping up and down on the victim.

Another witness, Paul Hernandez, stated that he saw appellant "just standing there jumping up and down . . . I guess on the guy." Hernandez testified that appellant later stated, "He's dead, I killed him." Hernandez drove appellant away from the scene; blood was left on the car's floor mat below the seat where appellant had sat. Linda Overway testified that she also saw appellant kicking the victim. Yet another witness, Anthony Ybarra, testified that he, too, witnessed the beating. He testified that the victim said that he did not want any trouble when he was confronted by appellant and Perez. Then appellant and Perez both hit the victim in the face. When the victim fell down on his knees, they both continued hitting him. Five minutes later, appellant was still hitting Redman. Finally, Kristie Wilbur saw appellant and Perez hit the victim, although the victim never fought back. Wilbur testified that appellant changed his shirt after the beating because it was covered with blood.

The physical evidence admitted at trial supports the eyewitness testimony. Appellant's shirt, pants, and boots were stained with human blood that matched the victim's blood type. An analysis of blood splatters on appellant's pants indicated they were consistent with the type of splatters that would be caused if someone kicked or stomped on a bloody object. Furthermore, the medical examiner testified that patterns imprinted on the forehead and neck of the victim matched the pattern on the soles of appellant's boots. The medical examiner testified that the victim died as a result of massive blunt injury to his face and upper neck from being stomped on. The injuries to his face and neck were so severe that "it caused his death by blocking his airway with such a massive fracturing of the tracheal bones and such a massive bleeding he could not breath anymore. He practically asphyxiated to death."

Given the extensive evidence supporting appellant's conviction, we cannot conclude that the trial court erred in determining that even if defense counsel had possessed the Salazar statement, there is not a reasonable probability that the result of the trial would have been different. Appellant's first and second points of error are overruled. (3)

In his third point of error, appellant contends that the trial court erred by denying his motion for new trial because he satisfied the requirements of former Rule of Appellate Procedure 30(b)(6), which provided that "a new trial shall be granted an accused . . . [w]here new evidence favorable to the accused has been discovered since trial." (4) A motion for new trial is directed to the sound discretion of the trial court, and its denial of such a motion will not be reversed absent a clear abuse of discretion. Jones v. State, 711 S.W.2d 35 (Tex. Crim. App. 1986). The Court of Criminal Appeals has held that when a court grants a new trial based on newly discovered evidence, the record must reflect that:

 

(1) the newly discovered evidence was unknown or unavailable to the movant before trial; (2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new eivdence is probably true and will probably bring about a different result in another trial; and (4) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching.

 

Drew v. State, 743 S.W.2d 207, 226 (Tex. Crim. App. 1987); Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim. App. 1985). (5)

Appellant has not met the above standard. As already demonstrated in this opinion, the record contains appellant's confession, eyewitness testimony, and physical evidence, all of which indicate that the Salazar statement would not bring about a different result in another trial. Furthermore, the Salazar statement constitutes impeachment evidence, and therefore is also insufficient under the rule. Appellant's third point of error is overruled.

 
CONCLUSION

Finding no error, we affirm the conviction.

 

Mack Kidd, Justice

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Affirmed

Filed: August 17, 1994

Do Not Publish

1. Sergeant Hector Polanco was not called as a witness at the hearing on appellant's motion for new trial. The trial court made a finding that had Polanco been called as a witness, he would have invoked his right against self-incrimination and refused to answer questions from either the State or the defense.

2. The appeal from Perez's conviction is also before this Court in a separate cause. Perez v. State, No. 3-92-126-CR.

3. Appellant also contends that the prosecutor failed to disclose to defense counsel that Paul Hernandez had told police that the victim had uttered racial slurs prior to being attacked by appellant and Perez. Appellant contends that had he known this, he could have brought this out in his cross-examination of Hernandez. Appellant contends that he would then have requested that a lesser included offense to murder be included in the jury charge. On reviewing the record, we find that defense counsel did question Hernandez before the jury regarding the racial slurs allegedly made by the victim. Defense counsel could have requested a charge on a lesser included offense, but chose not to do so, thereby waiving any error in this regard.

4. Tex. R. App. P. 30(b)(6), 11 Tex. Reg. 743, 747-48 (1986, disapproved by the Texas Legislature, Act of May 29, 1993, 73d Leg., R.S., ch. 900, 11.02, 1993 Tex. Gen. Laws 3586, 3765). The trial court's ruling on appellant's motion for new trial is governed by the now-disapproved Rule 30(b)(6).

5. The predecessor of Rule 30(b)(6), Tex. Code Crim. Proc. art. 40.03(6), provided in part: "New trials, in cases of felony, shall be granted the defendant . . . [w]here new evidence material to the defendant has been discovered since the trial." Appellant contends that the four-part test previously applied to article 40.03 should not be applied to Rule 30(b)(6) because the latter uses the word "favorable" rather than "material." The Court of Criminal Appeals has not addressed this issue. One court of appeals has agreed with appellant's construction. Meriwether v. State, 840 S.W.2d 959 (Tex. App.--Beaumont 1992, pet. ref'd). All other courts of appeals have continued to apply the four-part test. Burns v. State, 844 S.W.2d 934 (Tex. App.--Amarillo 1992, no pet.); Alford v. State, 807 S.W.2d 840 (Tex. App.--Waco 1991, no pet.); Dedesma v. State, 806 S.W.2d 928 (Tex. App.--Corpus Christi 1991, pet. ref'd); Tate v. State, 762 S.W.2d 245 (Tex. App.--Houston [1st Dist.] 1988, no pet.); Cevallos v. State, 755 S.W.2d 901 (Tex. App.--San Antonio 1988, pet. ref'd); Balderas Cortez v. State, 735 S.W.2d 294 (Tex. App.--Dallas 1987, no pet.). We choose to follow the courts that have applied the four-part test to Rule 30(b)(6).