JACOB KIMBERLIN v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

 NUMBER 13-03-00186-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

JACOB KIMBERLIN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 105th District Court of Nueces County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Jacob Kimberlin, guilty of the offense of murder and assessed his punishment at sixty years= imprisonment. The trial court has certified that this is not a plea bargain case, and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). In three issues, appellant contends (1) the suppression of material exculpatory evidence deprived him of due process of law, (2) the trial court abused its discretion in excluding an exculpatory excited utterance, and (3) the trial court erred in admitting irrelevant and prejudicial evidence during punishment. We affirm.

As this is a memorandum opinion not designated for publication and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.

A. Suppression of Exculpatory Evidence

In his first issue, appellant contends that because the State failed to inform him of the availability of Robert Tijerina to testify, the State violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963).

In Brady v. Maryland, the United States Supreme Court held that suppression by the prosecution of evidence favorable to the accused violates due process when the evidence is material to either guilt or punishment, regardless of the bad or good faith of the prosecution. See id. at 87. To determine whether the suppression of evidence mandates reversal under Brady, the following three factors must exist: (1) the State must suppress or withhold evidence; (2) that is favorable to the accused; and (3) that is material to the defense. Thomas v. State, 841 S.W.2d 399, 403 (Tex. Crim. App. 1992) (citing Moore v. Illinois, 408 U.S. 786, 787-95 (1972)). Favorable evidence includes both exculpatory and impeachment evidence. Id. at 404. The 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. Id. A Areasonable probability@ is a probability sufficient to undermine confidence in the outcome. Id.

Appellant claims that Tijerina=s testimony would have supported his defensive theory that appellant was the driver of the vehicle and David Ayala was the shooter. However, appellant has not established that there is a reasonable probability that the exclusion of Tijerina=s testimony undermined the confidence of the outcome of his trial.

At the hearing on the motion for new trial, Tijerina testified that he witnessed a white vehicle go down his street the night of the shooting, and the driver of the vehicle was a bald Hispanic or white male. However, Tijerina was unable to identify anybody in the vehicle. Appellant has not shown how the result of his trial would have been different if Tijerina=s testimony had been presented to the jury. Tijerina did not relay the time the vehicle traveled on his street, nor did he identify the make of the vehicle or anyone inside the vehicle.

Accordingly, we hold that Tijerina=s testimony does not qualify as Brady evidence. Therefore, its suppression does not constitute a due process violation. Appellant=s first issue is overruled.

B. Excited Utterance Exception

In his second issue, appellant contends the trial court erred in excluding the out-of-court declarations of Robert Tijerina because they fall within the excited utterance exception to the hearsay rule.

Assuming, without deciding, that the trial court's ruling was erroneous, we must determine whether it amounts to reversible error. Exclusion of evidence is non constitutional error, unless it precludes the defendant from presenting the substance of his defense. Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002). Non constitutional error that does not affect a defendant's substantial rights must be disregarded on appeal. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). A reviewing court may not reverse a conviction for non constitutional error if, after reviewing the record as a whole, it has "a fair assurance that the error did not influence the jury, or had but a slight effect." Id. In making the harm analysis, the reviewing court should consider the entire record, including any defensive theories. Motilla v. State, 78 S.W.3d 352, 355 56 (Tex. Crim. App. 2002).

We concluded above that appellant had not shown how the result of the trial would have been different if Tijerina=s testimony had been presented to the jury. Likewise, after reviewing the record, we conclude that any error had but a slight effect. Appellant=s second issue is overruled.

C. Admission of Prior ABad Act@ Evidence

In his third issue, appellant complains that the trial court erred in admitting the testimony of Jennifer Fisher at the punishment phase of the trial.[1] Specifically, appellant contends the State failed to prove beyond a reasonable doubt that he engaged in the Abad act,@ and alternatively, the prejudicial effect of the evidence outweighs its probative value.

We review a trial court's decision to admit evidence under an abuse of discretion standard. Allen v. State, 108 S.W.3d 281, 285 (Tex. Crim. App. 2003). During the punishment phase of a trial, the State may offer evidence Aas to any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged. . . .@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon Supp. 2004-05). The trial court is responsible for determining the threshold admissibility of extraneous offense evidence at the punishment phase; that is, the court must make an initial determination at the proffer of the evidence that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. Moore v. State, 82 S.W.3d 399, 409 (Tex. App.BAustin 2002, pet. ref'd); see Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996).

After reviewing the record, we conclude the trial court did not abuse its discretion by admitting Fisher=s testimony. The trial court heard the testimony outside the presence of the jury following appellant=s objection, determined the testimony was relevant for purposes of punishment, and properly instructed the jury only to consider evidence of any bad act committed if they found beyond a reasonable doubt that appellant committed such act. Appellant=s third issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this the

30th day of June, 2005.

[1] Jennifer Fisher testified that when she was in the Nueces County Jail in February 2003, she had conversations through the ventilation system with someone named AMaverick@ regarding sexual conduct. The next day she was transferred to a substance abuse treatment facility (ASATF@). While in that facility, she received a letter signed by AMaverick,@ which states, among other things, AIt really sucks we didn=t get to know each other a little better over the vent before you left for SATF. . . .@ During the guilt/innocence phase of trial, appellant admitted that he wrote the letter addressed to Jennifer Fisher.