GABRIEL RAMOS v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

 NUMBER 13-03-00217-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

GABRIEL RAMOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 347th 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, Gabriel Ramos, guilty of the offenses of capital murder and engaging in organized criminal activity. The trial court assessed appellant=s punishment at life imprisonment for the capital murder and sixty-five years= imprisonment for engaging in organized criminal activity. The trial court has certified that this case Ais not a plea-bargain case, and [appellant] has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). In two issues, appellant contends (1) the trial court erred by improperly admitting extraneous offense evidence during the guilt/innocence phase of the trial, and (2) his Fourteenth Amendment right to due process and Sixth Amendment right to confront and cross-examine witnesses were violated because the State failed to disclose exculpatory evidence. We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them 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. Extraneous Offense Evidence

In his first issue, appellant contends the trial court erred by admitting extraneous offense evidence during the guilt/innocence phase of the trial in violation of rule 404(b) of the rules of evidence. See Tex. R. Evid. 404(b). Specifically, appellant argues that the State failed to properly provide notice of its intent to use extraneous offense evidence in its case-in-chief after appellant timely requested that the State do so.

A defendant who timely requests notice of the State=s intent to introduce extraneous offenses during the case-in-chief is entitled to notice Ain the same manner as the state is required to give notice under Rule 404(b).@ Tex. Code Crim. Proc. Ann. art. 38.37, _ 3 (Vernon 2004). An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). An extraneous offense is an offense that is extra, beyond, or foreign to the offense for which the party is on trial. Ridinger v. State, 174 S.W.2d 319, 320 (Tex. Crim. App. 1943).

Appellant was charged with the offense of engaging in organized criminal activity by committing capital murder Aas a member of a criminal street gang.@ Tex. Pen. Code Ann. _ 71.02(a) (Vernon Supp. 2004-05). A criminal street gang is Athree or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.@ Tex. Pen. Code Ann. _ 71.01(d) (Vernon 2004).

Appellant asserts that State witness Robert Luera=s testimony that he saw appellant with a kilo of cocaine at his apartment in November 2000, is evidence of an extraneous offense. Luera testified that he was a member of the ARaza Unida@ street gang for a number of years, and appellant was a ranking officer in that gang. Luera is now a former member of the gang. Luera testified he was a police informant who provided information on Raza Unida gang members= drug activities.

Other Raza Unida members testified that appellant was a high ranking member of the gang, members of Raza Unida had tattoos signifying membership, and dealing drugs was a major and regular source of income for the gang. Ramiro Saldana, a member of Raza Unida, testified that Raza Unida business took place in November 2000, at the apartments where appellant was seen with the kilo of cocaine. Appellant testified that while a member of Raza Unida, he dealt drugs and was in charge of lower ranking members= drug dealings. Corpus Christi Police Officer Randy Ford testified that, in his experience, there is always a connection between a Raza Unida gang member=s drug dealing activities and the gang.

Based on these facts, the evidence of appellant=s possession of a kilo of cocaine was relevant to show how he, as a member of the Raza Unida Acriminal street gang,@ regularly participated in the Adistribution of a controlled substance,@ an element of the offense of engaging in organized criminal activity. Tex. Pen. Code Ann. _ 71.02(a)(5). Because this evidence was not extraneous offense evidence, we conclude it was not subject to the notice requirements of rule 404(b). Appellant=s first issue is overruled.

B. Exculpatory/Impeachment Evidence

In his second issue, appellant contends the State failed to disclose exculpatory evidence, thereby depriving him of due process of law. Specifically, appellant claims the State failed to disclose that (1) Robert Lara, a prosecution witness, was implicated in an unrelated double homicide and had made inconsistent statements about that double homicide during the investigation, and (2) Mark Alaniz, appellant=s non-testifying co-defendant, had informally accepted a favorable plea offer from the State prior to appellant=s trial.

1. Applicable Law

The State violates due process when it suppresses evidence in its possession favorable to an accused when the evidence is material, either to guilt or punishment, regardless of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). 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)). Impeachment evidence is considered exculpatory evidence. Ex parte Richardson, 70 S.W.3d 865, 872 (Tex. Crim. App. 2002). 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. Thomas, 841 S.W.2d at 404. A Areasonable probability@ is a probability sufficient to undermine confidence in the outcome. Id.

2. Robert Lara

At trial, Lara testified that he had been in jail with appellant and appellant had arranged to pay a guard $500 to provide him with marihuana and hacksaw blades to escape. On cross-examination, Lara testified that he had no deal with the State for his testimony against appellant. Appellant argues that if the State had disclosed Lara=s involvement in an unrelated murder case, then he could have impeached Lara by disputing Lara=s claim that he had no deal with the State in exchange for his testimony against appellant, because Lara had not been charged in the murders.

Lara had previously testified in an unrelated burglary case that he had telephoned his wife from jail and asked her to help a fellow inmate contact his brother via a three-way telephone connection. Lara=s fellow inmate ordered a hit on two individuals during that three-way telephone conversation, leading to two murders. Lara testified that he did not participate in the conversation.

At the hearing on the motion for new trial, prosecutor James Sales testified there was nothing to suggest that Lara knowingly participated in setting up the murders, and there was never any discussion of charging Lara with those unrelated murders. Sales testified that Lara was not getting any consideration for his testimony against appellant.

Lara=s testimony against appellant was only a small part of the State=s case. Numerous State=s witnesses provided much more relevant and material testimony regarding appellant=s involvement with the murders and crimes for which appellant was on trial. Appellant has not shown how the result of his trial would have been different if Lara=s involvement in the unrelated murders had been presented to the jury. We hold that Lara=s involvement in the unrelated murders does not qualify as Brady evidence, and its suppression does not constitute a due process violation.

Appellant also argues that if the State had disclosed that Lara had made inconsistent statements when he was providing information regarding the unrelated murders, appellant could have exposed Lara=s history of inconsistency in murder investigations to the jury. A witness may not be impeached on immaterial and collateral matters. Shipman v. State, 604 S.W.2d 182, 183 (Tex. Crim. App. 1980). A collateral question is one which seeks only to test a witness=s general credibility or relates to facts irrelevant to the issues at trial. Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984). The prosecution generally has no duty under Brady to turn over evidence that would be inadmissible at trial. Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997).

Here, Lara=s inconsistent statements applied only to the unrelated murders. There is nothing in the record indicating that Lara made any inconsistent statements regarding his testimony in appellant=s case. We conclude that Lara=s prior inconsistent statements regarding the unrelated murders were not proper impeachment evidence and did not amount to improperly withheld Brady evidence.

3. Mark Alaniz

Prosecutor Sales testified at the hearing on the motion for new trial that Mark Alaniz had been offered, and had accepted, a two-year sentence for engaging in organized criminal activity prior to appellant=s trial. Appellant contends that if the State had disclosed the fact that his non-testifying co-defendant, Alaniz, had received a plea offer prior to trial, he could have used this information to support his theory that he was being set up to take the fall for the murders committed by his fellow gang members.

While it is proper for a defendant to establish the bias of a witness against him, generally speaking, it is not permissible to show that another non-testifying person, who has been jointly or separately indicted for the same offense as the accused, has been either convicted or acquitted. Miller v. State, 741 S.W.2d 382, 389 (Tex. Crim. App. 1987). Because Alaniz did not testify in appellant=s trial, evidence of his plea was inadmissible. Because the prosecution has no duty under Brady to turn over evidence that would be inadmissible at trial, Lagrone, 942 S.W.2d at 615, Alaniz=s plea agreement was not improperly withheld Brady evidence. Appellant=s second 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 18th day of August, 2005.