Juan Artemio Garcia v. The State of Texas--Appeal from 381st Judicial District Court of Starr County

OPINION

No. 04-03-00404-CR
Juan Artemio GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 381st Judicial District Court, Starr County, Texas
Trial Court No. 02-CR-277
Honorable John A. Pope, III, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 15, 2004

AFFIRMED

Juan Artemio Garcia was convicted of capital murder and sentenced to life imprisonment. Garcia raises numerous issues on appeal. Based on a thorough review of the record and analysis of the appellate issues, we affirm the trial court's judgment.

Background

On July 9, 2002, Trinidad Hernandez, was found dead in the cab of a pick up truck on Highway 755 in Starr County with a gunshot wound to the head. Sergio Aldape (1) was arrested and charged with Trinidad's murder. Aldape initially denied killing Trinidad, but later admitted to shooting him and claimed that Appellant, Juan Artemio Garcia, had hired him to commit the murder. In exchange for $10,000, Aldape agreed to stage a drug deal with Trinidad. After arranging the drug deal, Aldape led Trinidad, who followed in a separate car, out onto Highway 755. At some point Aldape stopped and approached Trinidad's vehicle. Trinidad attempted to leave, but Aldape put his hand in the partially open window and shot Trinidad in the head. Aldape then reported to Garcia that the shooting had taken place. He later met Garcia at Los Compadres, a local bar, where Garcia paid Aldape a sum of money. Aldape pled guilty to capital murder and agreed to testify against Garcia in exchange for the State's recommendation of a maximum sentence of 30 years.

At trial, three of Trinidad's relatives testified to a confrontation between Trinidad and Garcia over missing marihuana which occurred approximately one month before Trinidad's murder. Two employees of Garcia testified that they saw El Guero, i.e., Aldape, at Garcia's ranch on the night of the murder and saw him give Garcia a gun and a beeper. One employee, Jose Rodriguez Rios, testified he heard El Guero say he had "done the job" and had "killed a person." Another employee, Jesus Angel Cavazos Rodriguez, testified that El Guero indicated to Garcia that the beeper belonged to the deceased man. After El Guero left, Garcia instructed Rodriguez to drive by the scene and confirm Trinidad's death. Rodriguez reported to Garcia that a truck was off the road with a dead person inside and police surrounding the truck. Rodriguez further testified that later that night he accompanied Garcia to a nearby bar where he witnessed a meeting between Garcia and El Guero in the bar's parking lot. He saw Garcia give El Guero "a roll of bills." Dina Garza, who was dating Aldape, testified he had a small black gun in his possession on the day of the murder, and he asked her to hold $1,000 for him later that night at Los Compadres bar. Jessica Munoz, a friend of Dina's, also testified she saw Aldape with a gun when he borrowed her car on the day of the murder. Jessica stated Aldape was "broke" that day, but had "a lot of money" the day after the murder.

Analysis

On appeal, Garcia raises a number of issues, which include: (1) whether the evidence is factually insufficient to support the jury's finding that Garcia intentionally employed Aldape to kill Trinidad; (2) whether the trial court improperly commented on the weight of the evidence during trial, violating his right to a fair and impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, 10 of the Texas Constitution; (3) whether the trial judge abused his discretion in denying Garcia's motions for mistrial after a witness stated in front of the jury that he did not want to testify for fear for his safety, and after an unauthorized communication with a juror violated his right to an impartial jury; (4) whether the trial court violated Garcia's right to confront witnesses through cross-examination and impeachment evidence; (5) whether the trial court denied Garcia effective assistance of counsel by not allowing certain questions during voir dire; and (6) whether the trial court violated his right to timely disclosure of all exculpatory evidence in the possession of the State. We address each issue below.

Sufficiency of Corroborating Evidence (Issue No. 1)

In his first issue, Garcia claims the evidence is insufficient to corroborate the accomplice witness testimony of the shooter, Sergio Aldape. An accomplice witness is someone who participated before, during or after the commission of the crime. Williams v. State, 995 S.W.2d 754, 759 (Tex. App.-San Antonio 1999, no pet.) (citing Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)). Article 38.14 of the Texas Code of Criminal Procedure provides, "a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). It is not necessary that the corroborating evidence directly connect the defendant to the crime or be sufficient by itself to establish guilt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); see also Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App.1999) (en banc). It need only tend to connect the defendant to commission of the offense. Cathey, 992 S.W.2d at 462 (citing Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988)). As discussed below, we conclude the non-accomplice testimony is sufficient to corroborate Aldape's accomplice testimony.
In conducting a sufficiency review under the accomplice witness rule, an appellate court must eliminate the accomplice testimony from consideration, and then examine the remaining portions of the record to see if there is any evidence that tends to connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). "Tendency to connect" is the sufficiency standard, rather than rational sufficiency. Id.; see also Cathey, 992 S.W.2d at 462-463 (holding the accomplice witness rule is a statutorily imposed sufficiency review which is not derived from federal and state constitutional principles, and declining to apply the legal and factual sufficiency standards). In determining the sufficiency of corroborative evidence, each case must be considered on its own facts and circumstances. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993) (en banc). Setting aside the accomplice testimony, all of the other facts and circumstances in evidence may be looked to for corroboration, and the corroborative evidence may be circumstantial or direct. Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991) (en banc). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462 (citing Gosch, 829 S.W.2d at 777). If the non-accomplice evidence does not tend to connect the defendant to the offense, then the evidence is insufficient to support the conviction and the defendant must be acquitted. See Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 1979); see Munoz, 853 S.W.2d at 560.

As discussed in detail supra, Aldape confessed to killing Trinidad Hernandez and testified at trial that Garcia hired him to kill Trinidad. The jury's verdict of guilt is based on both the accomplice and non-accomplice witness testimony. Aldape's accomplice testimony constitutes direct evidence which, if sufficiently corroborated and believed by the jury, would be sufficient to support Garcia's conviction for capital murder. See Meador v. State, 811 S.W.2d 612, 621 (Tex. App.-Tyler 1989), aff'd, 812 S.W.2d 330 (Tex. Crim. App. 1991). The non-accomplice testimony need only tend to connect Garcia to Trinidad's murder, it need not be independently sufficient to support a finding of guilt. Id.; Cathey, 992 S.W.2d at 462.

Setting aside Aldape's accomplice testimony, and the testimony of Rodriguez, (2) we conclude the State presented sufficient corroborating evidence to connect Garcia to the commission of Trinidad Hernandez's murder. Ana Hernandez, Trinidad's wife, testified that her husband was involved with Garcia in a drug trafficking business. Three witnesses testified to a confrontation between Garcia and Trinidad that occurred three to four weeks before Trinidad's murder. Jose Hernandez, Trinidad's brother, testified he was present when Garcia confronted Trinidad at his home about three or four weeks before the murder, and he saw a gun in Garcia's waistband during the argument. Jose testified that Garcia told him to tell Trinidad to "give me my stuff back and everything is going to be alright," and that Trinidad later said the "stuff" was marihuana. Evaristo Sandoval, another brother of Trinidad's, testified he was also present when Garcia argued with Trinidad about one month before the murder. He heard Garcia say, "I want my drugs back." Finally, Cynthia Guerrero, the wife of Jose Hernandez, testified she heard Garcia tell Jose to "get the works for me," or "deliver me the merchandise," during this same argument with Trinidad. All three versions of the prior confrontation between Garcia and Trinidad were substantially the same.

The evidence of an existing business relationship between Garcia and Trinidad, and a prior confrontation between them over missing marihuana within one month of the murder, connects Garcia to Trinidad and supplies a motive for Garcia to solicit Trinidad's murder. Evidence of motive alone is not sufficient to corroborate accomplice witness testimony, but may be considered along with other evidence tending to connect the defendant with the crime. Leal v. State, 782 S.W.2d 844, 852 (Tex. Crim. App. 1989) (en banc).

There was also evidence tending to connect Garcia to the commission of Trinidad's murder on the day of the murder, July 9, 2002. Jose Rodriguez Rios, an employee of Garcia's who was living at Garcia's ranch, testified that a man he knew as "El Guero" came to see Garcia at his ranch in the evening on July 9, 2002. Rios saw El Guero give Garcia a gun and beeper, and heard him tell Garcia that he "had done the job," he "had killed a person." Rios further testified that after El Guero left, another employee, Jesus Angel Cavazos Rodriguez, was instructed to drive by the scene and verify the person's death, which he did. Finally, Rios testified he saw El Guero at Garcia's ranch again that same night, at approximately 3:00 a.m.

The non-accomplice testimony that Garcia was seen with Aldape shortly after Trinidad's murder connects Garcia to the confessed shooter around the time of the murder. The defendant's presence with the accomplice witness shortly before or after the crime may be sufficient corroboration when combined with other facts and circumstances that connect the defendant to commission of the crime. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (en banc); see also Mitchell v. State, 650 S.W.2d 801, 808 (Tex. Crim. App. 1983) (en banc). Not only was Garcia in the presence of Aldape around the time of the murder, Aldape was heard telling Garcia he had "done the job" and "had killed a person," and was seen giving Garcia a gun and beeper. Further, Garcia instructed an employee to verify that the murder had occurred on the highway. When combined with the non-accomplice testimony about a prior confrontation between Garcia and Trinidad, we hold this evidence is sufficient to corroborate Aldape's accomplice testimony. See, e.g., Tucker v. State, 461 S.W.2d 630, 637 (Tex. Crim. App. 1970) (non-accomplice testimony that defendant was seen with accomplice at least twice prior to the murder, that defendant came looking for accomplice witness to do a job for him, and that defendant had resigned his job due to dispute between his employer and murder victim, was sufficient to corroborate accomplice witness's testimony). The non-accomplice evidence does not have to directly link Garcia to Trinidad's murder, or be sufficient alone to establish Garcia's guilt beyond a reasonable doubt; it merely has to tend to connect Garcia to the murder. McDuff, 939 S.W.2d at 613. Garcia's first issue is overruled.

Denial of Mistrial After Unsolicited Witness Statement (Issue No. 3)

Garcia complains in his third issue (3) that the trial court erred in denying his motion for a mistrial after a State witness, Evaristo Sandoval, stated that he was afraid to testify. We conclude that any error that arose from the jury hearing Sandoval's unsolicited statement was cured by the court's prompt and decisive instruction to disregard the statement.

When the State called Sandoval as a witness, after the judge's preliminary comments, but before direct examination had begun, the following exchange took place:

Court: You had something to say?

Sandoval: Yes, sir, I just want to make a statement.

Court: About what?

Sandoval: That I originally not wanted to come and testify.

Court: Not wanted to?

Sandoval: Yes, sir, for fear of my own safety.

Court: We can't have that.

Defense: I'm going to object to that statement.

Court: So noted.

Defense: In the presence of the Jury, Your Honor.

Court: Please, Ladies and Gentlemen of the Jury, do not consider his statement. That was not made in request to any questions propounded to him. That is not an issue. You will not use this in any deliberation and I order you not to consider that. All right.

Defense: Judge, I'm also at this time making a motion for mistrial based on what the Jury just heard, Your Honor.

Court: Okay. Denied. All right.

The trial court's denial of a motion for mistrial is reviewed for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Fairley v. State, 90 S.W.3d 903, 905 (Tex. App. -- San Antonio 2002, no pet.). Mistrial is considered an extreme remedy and reviewing courts rarely reverse a trial court's denial of a mistrial after improper testimony. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000); see also Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996) (en banc) (noting, "[e]ven when a prosecutor intentionally elicits testimony. . . before the jury which is excludable at the defendant's option, our law prefers that the trial continue"). Error from improper testimony is most often curable by a prompt instruction to disregard. Hernandez v. State, 805 S.W.2d 409, 413-14 (Tex. Crim. App. 1990) (en banc). The effectiveness of a curative instruction is determined by the particular facts and circumstances of each case. See Wood, 18 S.W.3d at 648; see also Benoit v. State, 87 S.W.3d 668, 671 (Tex. App.--San Antonio 2002, pet. ref'd). Only in extreme cases, where the testimony is "clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind," is an instruction considered inadequate and a mistrial warranted. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (en banc); see also McDonald v. State, 911 S.W.2d 798, 803 (Tex. App. -- San Antonio 1995, pet. dism'd). On appeal, there is a presumption that the instruction given was efficacious. Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994) (en banc).

Here, the comment made by Sandoval was not purposefully elicited by the State or the judge, and the jury was given a prompt instruction to disregard the unsolicited comment. The presumption is that an instruction to disregard will be obeyed by the jury. Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988) (en banc); see also Martinez v. State, 844 S.W.2d 279, 284 (Tex. App.--San Antonio 1992, pet. ref'd) (holding instruction to disregard was sufficient to cure any error arising from statement by witness alluding to threats made by defendant against another witness). In the context of the facts of this case, and the circumstances surrounding Sandoval's comment, we conclude the comment was not of such a character that an instruction to disregard would be unable to remove any harmful impression from the jury's mind. See Kemp, 846 S.W.2d at 308. The trial court did not abuse its discretion in denying Garcia's motion for mistrial. His third issue is overruled.

Comments on the Weight of the Evidence (Issue Nos. 2, 4, 5)

In Issue Nos. 2, 4 and 5, Garcia asserts that the trial court made various comments on the weight of the evidence in violation of article 38.05 of the Texas Code of Criminal Procedure, and of his right to be tried by a fair and impartial jury under the Texas and U.S. Constitutions. See U.S. Const. amend. VI, XIV; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).

Instruction on Dina Garza's Statement.

Garcia contends in his second issue that the trial judge's instruction to disregard a statement made by defense counsel during his cross-examination of Dina Garza constituted a comment on the weight of the evidence under article 38.05 that diminished the viability of the defense theory that Aldape was not credible. While cross-examining Dina, defense counsel asked whether she recalled telling investigators that Julio was the person who committed the murder. When she replied "No," the following exchange occurred:

Q: "Well, can you look at your statement on ... page Number 4, ma'am. Towards the bottom part of your statement there, the last four, five sentences ..."

A: "Yes, sir."

Q: "You mention that a Julio had done a killing?"

A: "I didn't mention it."

Q: "Who did ? ..."

A: "Sergio did."

The State's objection that the questioning was improper cross-examination was overruled. On redirect, Dina clarified that Aldape had made the statement implicating Julio during a phone call to her sister. The State then raised another objection, contending that defense counsel had deliberately misled the witness as to what her written statement said. The State requested a limiting instruction, which the court initially denied stating its concern that the instruction requested by the State would constitute "a comment on the matter." (4) After further discussion, the judge agreed to instruct the jury that the statement should not be admitted based on the State's objection and that it should not be considered. After the transcript was reviewed, the trial judge believed that a false impression regarding the contents of Dina's written statement had been left with the jury, and gave the following limiting instruction over a defense objection:

Ladies and gentlemen of the Jury, a few minutes ago in the examination of this witness, some statements were made concerning a, quote, statement, that did not appear and does not appear in the statement she made. I'm now instructing you that she never made a statement that Sergio - what's his name ? Aldape? Had said that Julio had killed somebody. Somebody else had. I'm ordering you now not to consider that portion of the statement that she made. That was never said by her.

In the appellant's brief, counsel misrepresents what the court's instruction said. Garcia asserts in his brief that the judge instructed the jury to give "no consideration to the testimony about Sergio blaming another person for the killing," and that the judge "told the jury that such a statement was never made." However, the court only instructed the jury that Dina Garza never made a statement that Aldape said Julio killed someone, i.e., that the statement was never said by her, but by someone else. The instruction did not order the jury to disregard all testimony that Aldape had blamed other people for the killing, and did not state that no witness made such a statement.

Article 38.05 provides, "[i]n ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he ... make any remark calculated to convey to the jury his opinion of the case." Tex. Code Crim. Proc. Ann. art. 38.05. The primary reason for the rule prohibiting a judge from commenting on the weight of the evidence is that an instruction by the judge on the weight of the evidence reduces the State's burden of proof. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 1678 (2004) (applying article 36.14 prohibiting the judge from expressing any opinion on the weight of the evidence in the jury charge). Courts have noted that, "jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved." Id. (quoting Lagrone v. State, 84 Tex. Crim. 609, 615-616, 209 S.W. 411, 415 (1919)); see also Devis v. State, 18 S.W.3d 777, 782 (Tex. App.-San Antonio 2000, no pet.).

A trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the State's arguments, or that indicates disbelief in or diminishes the credibility of a defense position. Hoang v. State, 997 S.W.2d 678, 681 (Tex. App.-Texarkana 1999, no pet.). To be reversible, a violation of article 38.05 must be reasonably calculated to benefit the State or prejudice the rights of the defendant. Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983) (en banc); see also Clark v. State, 878 S.W.2d 224, 226 (Tex. App.-Dallas 1994, no pet.). In evaluating whether the court's comment on the evidence was reasonably calculated to benefit the State or prejudice the defendant, the reviewing court first examines whether the statement was material to the case; a comment is material if the jury had the same issue before it. Clark, 878 S.W.2d at 226. The reviewing court must consider the consequences that probably resulted from the trial court's comment, and the error is harmless if the court determines beyond a reasonable doubt that the court's error made no contribution to the defendant's conviction. Id.; see also Tex. R. App. P. 44.2(a).

Here, the court's instruction to the jury merely sought to correct a false impression that Dina's written statement contained an assertion that it in fact did not contain. It is not improper for a trial judge to interject in order to correct a misstatement or misrepresentation of previously admitted testimony. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). The court's instruction did not constitute an improper comment on the weight of the evidence. See, e.g., Green v. State, 912 S.W.2d 189, 193 (Tex. Crim. App. 1995) (en banc) (holding court's written response to jury question stating that therapist "never used the term 'emotional problems' " was not an improper comment on weight of the evidence and did not instruct jury on a factual matter); see also Eckert v. State, 672 S.W.2d 600, 607 (Tex. App.-Austin 1984, pet. ref'd) (holding judge's instruction was proper comment correcting counsel's misstatement of the law).

Even if the court's instruction was an improper comment on the evidence, it can not be construed as reasonably calculated to benefit the State or prejudice Garcia. The instruction did not convey the judge's disbelief of the defendant's arguments or diminish the viability of the defense theory that Aldape was not credible. The evidence that Aldape had blamed others for the murder, and had made a particular statement blaming Julio, was presented later in the trial. Aldape himself testified that he told Dina's sister, Norma Garza, that Julio Rosas had committed the murder in a phone conversation that occurred two days after the murder. Aldape also admitted making several statements that various other people, including Julio Rosas, had committed the murder before eventually stating that Garcia had hired him to commit the murder. The court's limiting instruction with respect to the contents of Dina Garza's written statement did not diminish Garcia's ability to attack Aldape's credibility with evidence of his prior inconsistent statements about the murder. Garcia's second issue is overruled.

Other Comments on Weight of Evidence & Bias by Judge

In his fourth and fifth issues, Garcia argues the trial judge made several comments on the weight of the evidence that showed a bias against the defense and denied him a fair trial under the state and federal constitutions. Specifically, Garcia complains about the following actions by the trial judge: (1) questioning a State expert witness, Richard Hitchcock, in front of the jury; (2) providing his own translation from Spanish to English, even though there was an official interpreter; (3) commenting on the nervous demeanor of State's witness Jose Rodriguez Rios, and telling him that no one was going to harm him, in the jury's presence; and (4) allowing Evaristo Sandoval to blurt out that he was afraid to testify in front of the jury, and then instructing the jury to disregard his statement. (5)

Garcia raised no trial objection to the court's questioning of Hitchcock; (6) therefore, any error is waived. Tex. R. App. P. 33.1(a). Although a judge ordinarily may not question witnesses in front of the jury, when the defendant fails to properly and timely object, he forfeits the right to prohibit the judge from commenting on the weight of the evidence or conveying his opinion of the case through his questioning. See Brown, 122 S.W.3d at 798 n. 5; see also Moore v. State, 907 S.W.2d 918, 923 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd). The judge's questions are not the type of comments on the evidence that constitute fundamental error of constitutional dimension that cannot be forfeited. Moore, 907 S.W.2d at 923; c.f., Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality opinion).

Garcia also did not object to the court's translation of Garcia's statement to Trinidad made during their prior confrontation. The official interpreter translated Garcia's statement as, "get the works for me," while the judge offered his translation as, "deliver me the merchandise." The other record citation provided in appellant's brief involves the court's translation of "ma ana" to "tomorrow" while individually questioning a juror. Again, no objection was raised by Garcia's counsel. Any error was therefore waived. Tex. R. App. P. 33.1(a); see Devis, 18 S.W.3d at 782.

Further, Garcia did not object to the judge's comment on Rios's nervousness, or his statement to Rios that "nobody is going to beat you up ... nobody is going to kill you." The only objection by Garcia was to the relevance of the court's initial inquiry whether Rios had ever testified in court before. Garcia did not raise an additional objection when the court later attempted to calm the witness. Therefore, any error was waived by Garcia's failure to make a specific objection at the time of the court's statements. Tex. R. App. P. 33.1(a); Devis, 18 S.W.3d at 782.

Regardless of whether a court's purported comments on the evidence are fundamental error or not, if the appellate court determines beyond a reasonable doubt that the error made no contribution to the defendant's conviction, the error is harmless. Devis, 18 S.W.3d at 782. Viewed in the context of the record, we hold that none of the purported errors contributed to Garcia's conviction; therefore, any such errors were harmless. Tex. R. App. P. 44.2(a).

Finally, Garcia complains that the trial judge was generally biased against the defense, and expressed that lack of impartiality in the presence of the jury through his purported comments on the evidence. A trial judge's irritation with defense counsel does not translate to an indication of the judge's opinion about the defendant's guilt or innocence. Jasper, 61 S.W.3d at 421. Here, the trial judge's actions taken as a whole do not show that he abandoned his neutral status and took on the role of an advocate in the case. C.f., Bethany v. State, 814 S.W.2d 455, 461-462 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd) (holding cumulative effect of judge's improper actions denied defendant his rights to a fair trial and effective assistance of counsel). The judge did not interfere with the ability of Garcia's counsel to make independent decisions about how to conduct the defense. C.f., id. at 462. In evaluating an allegation of judicial misconduct, it is the fundamental purpose of the appellate court to ascertain whether the defendant received a fair trial. Id. at 456; see also Ex parte Adams, 768 S.W.2d 281, 293 (Tex. Crim. App. 1989) (en banc). Based on our review of the record, we conclude the trial court's actions did not deprive Garcia of a fair trial or effective assistance of counsel. Issue Nos. 4 and 5 are overruled.

Defendant's Right to Confront and Cross-Examine Witnesses (Issue Nos. 6-11)

In Issue Nos. 6-11, Garcia complains that the trial court violated Garcia's right to confront witnesses Jose Hernandez and Evaristo Sandoval by refusing to allow cross-examination regarding the witnesses' pending criminal charges, and by failing to ensure the timely disclosure of Sandoval's arrest and conviction records. We hold that no violation of the Confrontation Clause has occurred, and that if such violation did occur, it was in any instance harmless.

The right to confront witnesses is guaranteed to criminal defendants by our federal and state constitutions. U.S. Const. amend. VI, XIV; Tex. Const. art. I, 10. The essential purpose of the right is to secure the opportunity for cross-examination, the principal means of testing a witness's credibility. Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (en banc). "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis, 415 U.S. at 316-17. In exercising the right, a defendant is allowed great latitude to show any fact which would tend to establish ill feeling, bias, motive, or animus on the part of the witness testifying against him. Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987) (en banc); see also Miller v. State, 741 S.W.2d 382, 389 (Tex. Crim. App. 1987) (en banc) (holding that evidence that a witness who testifies against the accused has pending criminal charges against him or is awaiting sentencing is always admissible against him to show a possible motive for testifying for the State). The right, however, is not absolute. Trial judges retain some discretion to impose reasonable restrictions on cross-examination based on concerns such as harassment, prejudice, confusion of the issues, witness safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see Hurd, 725 S.W.2d at 252.

A criminal defendant is said to state a violation of the Confrontation Clause by showing that he was prohibited from conducting otherwise proper cross-examination designed to show a prototypical form of bias on the part of the witness and "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." Van Arsdall, 475 U.S. at 680 (quoting Davis, 415 U.S. at 318); Shelby, 819 S.W.2d at 546. If the party claiming error is able to show that a "reasonable jury might have received a significantly different impression of [the witness's] credibility had [their] counsel been permitted to pursue his proposed line of cross-examination," then they have met their burden in establishing a Confrontation Clause violation. Shelby, 819 S.W.2d at 546.

If a Confrontation Clause violation occurred, the reviewing court must then determine whether or not the error caused harm to the defendant. The denial of the opportunity to cross-examine does not fit within the limited category of constitutional errors that are deemed prejudicial in every case. Van Arsdall, 475 U.S. at 682. Thus, Confrontation Clause violations are subject to harmless error analysis. Tex. R. App. P. 44.2(a) (providing, in a criminal case, constitutional errors subject to harmless error analysis require reversal unless the appellate court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment); see Shelby , 819 S.W.2d at 547.

The inquiry in the case of a Confrontation Clause violation is whether, "assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at 684; see Shelby, 819 S.W.2d at 547. The determination of harm is based upon several factors, including: (1) the importance of the witness's testimony to the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. Van Arsdall, 475 U.S. at 684; Shelby, 819 S.W.2d at 547; Harwood v. State, 961 S.W.2d 531, 537 (Tex. App.--San Antonio 1997, no pet.).

Jose Hernandez. Jose Hernandez had a charge of capital murder pending against him at the time he made his statement to authorities in this case. Garcia was permitted to demonstrate to the jury that Hernandez had been in jail immediately before giving a statement, and that he had been released the day after giving his statement. Garcia was not permitted to ask questions regarding the nature of the pending charge against Hernandez or the facts involved in that unrelated incident. In Garcia's bill of exception, Hernandez stated that he had not made any agreement with the State regarding his testimony or his pending charge.

While the defendant is permitted to place before the jury "facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness," including facts related to pending criminal charges, this does not include a close inspection of the offense itself or the details of its commission. Van Arsdall, 475 U.S. at 680 (quoting Davis, 415 U.S. at 318); Shelby, 819 S.W.2d at 546; Lewis v. State, 815 S.W.2d 560, 565 (Tex. Crim. App. 1991) (en banc). Garcia was able to present to the jury sufficient facts from which they could infer that the credibility of Jose Hernandez might reasonably be questioned because of his vulnerable status as an inmate at the time of his statement. Therefore, there was no Confrontation Clause violation. Moreover, if a violation did occur, it was harmless under the analysis provided by Van Arsdall and Shelby.

Evaristo Sandoval. State's witness Evaristo Sandoval had an extensive criminal history, and had pled guilty to attempted robbery and burglary of a habitation approximately one month before he testified in this case. He received concurrent ten year sentences and was in custody at the time that he testified before the jury. Sandoval testified on direct examination about his criminal charges, his incarceration, and a prior federal felony conviction involving conspiracy in a drug case. Garcia was permitted to cross-examine Sandoval with respect to three felony charges that had been dismissed about one month prior to his testimony. (7) Garcia was prohibited from asking Sandoval about his additional prior arrests for assault, burglary, possession of dangerous drugs, DWI, injury to an elderly person, and four arrests for obstructing police officers. As with Jose Hernandez, it is apparent from the record that Garcia was able to put sufficient facts before the jury to allow them to infer that Sandoval's credibility might be questionable, either because of his criminal history or because of his vulnerable status as an inmate facing multiple unresolved criminal charges at the time that he agreed to testify on behalf of the State. Based on the information that Garcia was permitted to present to the jury, we hold that no Confrontation Clause violation occurred because he was not prohibited from placing facts before the jury that would allow them to make inferences regarding the witness's credibility. In addition, it is not clear that additional questioning regarding his criminal history would have caused the jury to reach a significantly different impression of Sandoval's credibility.

Finally, Garcia also complains in Issue Nos. 10 and 11 that the State's failure to provide the defense with a copy of Sandoval's criminal record prior to his being called as a witness caused a violation of the Confrontation Clause because Garcia was prevented from engaging in "effective" cross-examination regarding his criminal history. Garcia had requested the records in a discovery motion approximately six months before trial. The State agreed in a pre-trial hearing to provide those records prior to trial. At trial, the State called Sandoval as a witness without having previously produced his criminal records to the defense as agreed. As discussed above, Garcia was able to put on considerable testimony regarding Sandoval's criminal history as well as the fact that he had three felony charges dropped within one month prior to his testimony in this case. Sandoval's "vulnerable status" was readily apparent from the fact that he was in custody at the time of his testimony before the jury. While we do not condone the State's failure to provide the records in advance of trial as agreed, we conclude this failure did not prevent Garcia from placing sufficient information before the jury for them to make inferences regarding Sandoval's credibility; therefore, no Confrontation Clause violation occurred.

Under Brady v. Maryland, a prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Brady v. Maryland, 373 U.S. 83, 87 (1963); see Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). Favorable evidence includes both exculpatory and impeachment evidence, which would arguably include the criminal records of State witnesses as requested in this case. Little, 991 S.W.2d at 866. The test used to determine whether a prosecutor's actions have violated the due process rights of the accused in such a situation is whether the prosecutor (1) failed to disclose evidence (2) favorable to the accused and (3) the evidence is material, meaning that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993) (en banc). If Brady material is provided to the defendant in time for it to be used in his defense, the defendant's Brady claim fails. See Juarez v. State, 439 S.W.2d 346, 348 (Tex. Crim. App. 1969). Therefore, when the requested information is actually provided at trial, as it was in this case, the issue is whether the late disclosure prejudiced the defendant. Little, 991 S.W.2d at 866. If the defendant was able to use the information effectively at trial, his conviction should not be reversed merely because the prosecutor did not provide the information as early as originally agreed. Id. To prevail under Brady, the defendant must be able to show prejudice - "that the outcome of the proceeding would have been different had [the information] been disclosed earlier." Id. at 867. We hold that Garcia has failed to satisfy his burden of showing that the outcome of the proceeding would have been different had the information been provided earlier. As discussed above, Garcia was able to present information to the jury regarding Sandoval's criminal history sufficient to allow the jury to make inferences regarding the witness' credibility. Therefore, without a showing of prejudice, Garcia has not demonstrated any reversible error as a result of the late disclosure of Sandoval's criminal records. Garcia's Issue Nos. 6-11 regarding confrontation of witnesses are overruled.

Commitment Question During Voir Dire (Issue No. 12)

In Issue No. 12, Garcia contends he was denied effective assistance of counsel under the Texas Constitution, Art. I, 10, when his attorney was prevented from posing a hypothetical question to the jury panel regarding corroboration under the accomplice witness rule. Garcia argues he was not permitted to obtain sufficient information to exercise a potential challenge for cause for a panel member's potential bias or prejudice against the accomplice witness law. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2004-05); Raby v. State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998) (en banc) (the right to question venire members in order to intelligently exercise peremptory challenges and challenges for cause is essential to effective assistance of counsel).

During voir dire, the State discussed the law concerning accomplice witness testimony, including the requirement that an accomplice witness's testimony be corroborated. No one on the panel expressed any concern about following the accomplice witness law. Defense counsel then elaborated on the definition of an accomplice and the requirement of independent corroboration of the accomplice's testimony. Defense counsel was permitted to discuss a hypothetical in which a person throws a rock through a window on another's instruction. When counsel tried to give an example and ask a question about what facts would constitute corroboration, the State objected that the question applying the accomplice witness rule to hypothetical facts went "beyond legal principles" and was an "attempt to contract" with the jury on a particular issue. (8) The trial court sustained the State's objection on both occasions.

We review a trial judge's decision to limit voir dire for an abuse of discretion. Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995) (en banc). A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry- one which seeks to discover a potential juror's views on an issue applicable to the case. Sells v. State, 121 S.W.3d 748, 755-56 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 511 (2003). An otherwise proper question is impermissible, however, if the question attempts to commit the venire member to a particular verdict based on a specific set of facts. Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001); see also Lydia v. State, 109 S.W.3d 495, 497 (Tex. Crim. App. 2003). "Questions that commit prospective jurors to a position, using a hypothetical or otherwise, are improper and serve no purpose other than to commit the jury to a specific set of facts before the presentation of any evidence at trial." Lydia, 109 S.W.3d at 497 (citing Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997)). The test for determining when a voir dire question calls for an improper commitment has two prongs: (1) is the question a commitment question, and (2) does the question include only those facts that lead to a valid challenge for cause ? Standefer, 59 S.W.3d at 182. If the first answer is "yes," and the second answer is "no," then the question is an improper commitment question. Standefer, 59 S.W.3d at 182-83.

With respect to the first prong of the Standefer test, commitment questions "commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." Id. at 179. Commitment questions also include those questions asking a potential juror to set the hypothetical parameters for his or her own decision-making. Id. at 180. Defense counsel's first attempt to present the hypothetical example of corroboration asked potential jurors to resolve the issue of corroboration a certain way after learning a particular set of hypothetical facts. Therefore, it was a commitment question. Id. at 179; see also Lydia, 109 S.W.3d at 499. The second question posed by Garcia's counsel, "what is the evidence that you might look at to see if the testimony is backed up?," asked the potential jurors to define the type of evidence that would make a difference in his or her assessment of corroboration evidence. Thus, the question was a commitment question. See Lydia, 109 S.W.3d at 499. Having determined both inquiries were commitment questions, we proceed to decide whether they were improper commitment questions.

Under the second prong of the Standefer test, whether the commitment question was proper or improper depends on whether the question includes only those facts that lead to a challenge for cause. Standefer, 59 S.W.3d at 181. Commitment questions are improper when (1) the law does not require a commitment or (2) when the question adds facts beyond those necessary to establish a challenge for cause. Id. at 181-82. When the law requires a commitment, an attorney may ask whether the prospective jurors can follow the law in that respect. Id. at 181 (citing as an example an inquiry whether prospective jurors could follow instructions requiring corroboration of accomplice witness testimony). Here, however, defense counsel's questions did not simply ask whether the potential jurors could follow the accomplice witness rule; rather, they added a hypothetical set of facts regarding corroboration and sought to obtain a commitment to a certain result or decision. Therefore, the questions went beyond that necessary to determine whether a challenge for cause existed for a potential juror's bias or prejudice against the accomplice witness rule. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2); see also Dinkins, 894 S.W.2d at 345.

We conclude that the questions asked by Garcia's counsel were improper commitment questions. Therefore, the trial court did not abuse its discretion in refusing to permit the questions. Moreover, Garcia was not prohibited from inquiring into the potential jurors' possible preconceptions, biases or prejudices against the accomplice witness rule in an attempt to explore grounds for a challenge for cause. He was permitted to use the hypothetical fact scenario to explain the accomplice witness rule, but was properly prohibited from extending it to obtain a commitment on the issue of corroboration based on certain facts. See Rivera v. State, 82 S.W.3d 64, 66 (Tex. App.-San Antonio 2002, pet. ref'd) (hypothetical questions are permitted to ascertain views of prospective jurors and explain the law, but may not be used to commit prospective juror to a position based on a set of circumstances analogous to the case). Garcia's Issue No. 12 is overruled.

Unauthorized Communication to Juror (Issue Nos. 13, 14, 15)

In Issue Nos. 13 through 15, Garcia asserts the trial court erred in denying his motion for mistrial based on an unauthorized communication to a juror in violation of article 36.22 of the Texas Code of Criminal Procedure, and his right to a fair trial under the state and federal constitutions. See U.S. Const. amend. VI, XIV; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). The unauthorized communication consisted of a statement by Garcia's wife that "tomorrow other liars will follow," (9) which one juror overheard outside the courtroom and then relayed to three other jurors, two of whom were alternates.

Article 36.22 provides in relevant part, "no person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court." Tex. Code Crim. Proc. Ann. art. 36.22. For a defendant to have a fair trial, the jury must decide his case on the basis of the evidence presented at trial. Robinson v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991) (en banc). When an unauthorized person communicates with a juror about the case, a rebuttable presumption of harm to the defendant arises. Id.; see also Remmer v. United States, 347 U.S. 227, 229 (1954). We presume harm even when the communication did not rise to the level of a conversation or discussion of the specifics of the case. McIntire v. State, 698 S.W.2d 652, 659 (Tex. Crim. App. 1985) (en banc). The State then bears the burden of rebutting the presumption that the defendant was harmed. Remmer, 347 U.S. at 229; Robinson, 851 S.W.2d at 230. The presumption may be rebutted by showing the case was not discussed or the statement was not prejudicial to the defendant. Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985) (en banc). Even if a prejudicial statement was made to a juror, the harm presumption may be rebutted if the juror testifies the other jurors were not told about the statement and the statement would not influence the juror in reaching a verdict. Id.; Robinson, 851 S.W.2d at 230.

Here, the record shows that Garcia's wife made an ex parte statement that involved the credibility of witnesses testifying in Garcia's trial, which one juror overheard. (10) Although the statement was arguably favorable to the defense because it suggested the State's witnesses were liars, for purposes of this analysis, we will assume the statement had some prejudicial quality. Therefore, the burden shifted to the State to rebut the presumption of harm to Garcia. On appeal, Garcia does not argue the State failed to present sufficient evidence to rebut the harm presumption; rather, Garcia argues the trial court failed to conduct a sufficiently thorough inquiry to determine whether the unauthorized communication affected the jurors' ability to be impartial. Garcia asserts the court's inquiry was "superficial" and "suggestive," amounting to no more than an ineffective instruction to disregard. See Ites v. State, 923 S.W.2d 675, 677-78 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (holding instruction to disregard was insufficient to rebut harm presumption where no hearing was held and State presented no evidence of ex parte statement's effect on jurors). For the reasons discussed below, we hold the court conducted a sufficient inquiry and the jurors' testimony was sufficient to rebut the harm presumption.

Upon being informed by the juror of the statement she overheard, the trial court held a forty minute hearing outside the jury's presence with the court reporter and attorneys for the State and defense present. Although the attorneys were not permitted to question the jurors, the court consulted with the attorneys periodically and asked all of the questions suggested by the attorneys. (11)The judge questioned each juror separately and individually as to what she knew about the unauthorized statement, if anything, and whether it would affect her ability to be impartial and fair. Each juror testified under oath that the statement had no effect and that she could be impartial and fair in rendering a verdict. (12) The juror who overheard the statement testified that the only reason she told the other juror and two alternates about the statement was for the purpose of deciding whether she should report the incident to the judge. She further testified that the only discussion concerning the statement was about whether to tell the judge. Finally, the trial court inquired and determined that none of the other jurors had been told about the statement, and did not know that the present inquiry was taking place; the judge instructed the jurors not to mention anything about the statement or the court's inquiry.

The presumption of harm from an unauthorized communication to a juror can be overcome by the testimony of the jurors alone. See Horst v. State, 758 S.W.2d 311, 314-315 (Tex. App.-Amarillo 1988, pet. ref'd) (distinguishing an ex parte exclamation by a bystander from an actual conversation with a juror in which instance the testimony of all participants to the conversation is necessary to determine whether prejudice occurred). "The proper inquiry, where no actual conversation took place, is as to the effect of the incident upon a juror's ability to judge a case impartially." Id. at 315. The trial court should interrogate each juror involved and carefully consider the answers and demeanor of the juror, in light of the surrounding circumstances, in determining whether the juror can still be impartial. Id. Based on the record, we hold the trial judge conducted a sufficiently careful and thorough inquiry into the effect of the ex parte statement on the jurors' ability to be impartial, and did not err in denying Garcia's motion for mistrial based on his assessment of the jurors' demeanor and testimony that the statement had no effect on their impartiality. (13) See id. at 315-316; Robinson, 851 S.W.2d at 230 (no abuse of discretion to deny mistrial where trial judge was in position to observe juror's demeanor and assess testimony).

State's Failure to Disclose Brady Material in a Timely Manner (Issue No. 16)

In Issue No. 16, Garcia argues that the trial court violated his Fourteenth Amendment right to all exculpatory or mitigating evidence by failing to ensure that the State disclose, in a timely manner, the contents of a taped telephone call made by Sergio Aldape from jail to Jessica Munoz. In the call, Aldape threatened Jessica Munoz by stating that if she did not agree to drop a sexual assault charge that she had made against another individual, Aldape would tell authorities what Jessica had to do with the murder of Trinidad Hernandez. (14) Approximately one day after receiving the call, Jessica contacted the Starr County Sheriff's Office and asked to speak to an investigator about the threat. She was concerned because she was the complainant in the sexual assault case and had already given a statement to authorities in this murder case. An investigator, Salomon Ruiz, went to Jessica's home, listened to the message and made a tape of the statement from Jessica's voice mail. (15) He then spoke to Sergio Aldape at the jail and told him Jessica had made a complaint about the threatening phone call. The original voice mail was eventually deleted off of the cell phone system. On April 29, 2003, the second day of trial, the State advised the court and defense counsel of the tape and made the recording available to defense counsel to review that evening after the court recessed. The court had the tape transcribed and translated into English. Both Jessica and Sergio Aldape testified before the jury about the phone call, as well as Salomon Ruiz.

Garcia argues that the delayed disclosure (1) "precluded [his] consideration of numerous alternative trial strategies," (2) prevented a thorough cross-examination of Aldape, (3) prevented [him] from "focusing the jury on Aldape's propensity to use Hernandez's murder to exact favors or retaliate against third parties," (4) precluded the questioning of potential jurors regarding any bias or prejudice regarding "this theory," and (5) prevented the defense from focusing the jury on Aldape's credibility and his propensity to accuse others of Hernandez' murder.

As discussed above, a prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Brady, 373 U.S. at 87; Little, 991 S.W.2d at 866; Harwood, 961 S.W.2d at 544. Favorable evidence includes both exculpatory and impeachment evidence. Little, 991 S.W.2d at 866. The test used to determine whether a prosecutor's actions have violated the due process rights of the accused in such a situation is whether the prosecutor (1) failed to disclose evidence (2) favorable to the accused and (3) the evidence is material, meaning that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Ex parte Kimes, 872 S.W.2d at 702-03. When, however, the evidence is provided to the defendant in time for it to be used in the defense, the defendant's Brady claim would fail. Juarez, 439 S.W.2d at 348. Therefore, when the information or evidence is actually provided and used at trial, as it was in this case, to prevail under Brady, the defendant must be able to show prejudice - "that the outcome of the proceeding would have been different had [the information] been disclosed earlier." Little, 991 S.W.2d at 866-67.

We hold, however, that Garcia waived his complaint about the late disclosure of the tape by his failure to request a continuance at the time that the existence of the tape was disclosed. Disclosure of exculpatory evidence during trial affords the accused the opportunity to request a postponement or a continuance, and this procedure adequately satisfies the due process requirements of Brady. Payne v. State, 516 S.W.2d 675, 677 (Tex. Crim. App. 1974); Aguirre v. State, 683 S.W.2d 502, 516 (Tex. App. -- San Antonio 1984, pet. ref'd). "A defendant who fails to avail himself of this less drastic remedy waives any error resulting from the Brady violation. It is only when a trial court denies a request for continuance based on a Brady violation that a defendant may follow with a request for a mistrial." Cohen v. State, 966 S.W.2d 756, 763-64 (Tex. App. -- Beaumont 1998, pet. ref'd); see also Aguirre, 683 S.W.2d at 516; Yates v. State, 941 S.W.2d 357, 364 (Tex. App. -- Waco 1997, pet. ref'd); Zule v. State, 802 S.W.2d 28, 33 (Tex. App. -- Corpus Christi 1990, pet. ref'd). Here, defense counsel indicated that he believed the tape to be Brady material, he had not been provided enough time to review it, and as a result he was requesting a mistrial. The defense did not request a postponement or continuance either when he was first advised of the tape's existence, or at the time that the tape was being introduced. Therefore, any complaint about its late disclosure under Brady was waived.

Further, even if Garcia had not waived his complaint, any error arising from the late disclosure in this case was harmless because Garcia was able to use the tape for his defense and cross-examined both Jessica and Aldape about the contents of the tape during their testimony. (16) Garcia was not prevented from presenting, and in fact did present, to the jury Aldape's propensity to accuse others (including "Tavo," "El Gato," Julio Rosas, and Jessica Munoz), before eventually implicating Garcia. Garcia has not shown how any earlier disclosure would have changed the defense trial strategy, nor has he established that the outcome of the proceedings would have been different had the tape been disclosed earlier. Therefore, even if the Brady complaint had not been waived, it fails because Garcia failed to show prejudice. Little, 991 S.W.2d at 867; Aguirre, 683 S.W.2d at 516. Garcia's Issue No. 16 is overruled.

For the foregoing reasons, Garcia's issues on appeal are overruled and the judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

Do Not Publish

1. The testimony at trial indicated that Sergio Aldape was also known as "El Guero," a common Spanish nickname used to describe one who is fair-haired or fair-skinned.

2. Because the jury was instructed to consider Jesus Angel Cavazos Rodriguez as an accomplice, we exclude his testimony from our analysis of the non-accomplice evidence.

3. Issue No. 2 is discussed in combination with Issue Nos. 4 and 5 below.

4. The State initially asked the judge to "instruct the jury that [defense counsel's] statement and the answer in response to that is improper." The judge declined, stating, "No, sir. I will not do that. That is a comment on the matter, and I do not intend to [do] that."

5. This alleged error is fully addressed under Issue No. 3.

6. The court's questions focused on the difference between lands and grooves on a bullet, and were narrowly designed to clarify the foundation of the expert's testimony on ballistics.

7. The judge did not permit a question regarding the potential sentence that Sandoval would have faced on these charges had they not been dismissed.

8. The hypothetical presented by Garcia's counsel was, "... if I come and give her [juror]... two rocks ... and I tell her, 'Throw a rock out the window'... do you see how I might be accused of something ? ... Okay ... the definition says that you cannot convict ... on the accomplice testimony alone ... unless it's corroborated. Okay. So she gets arrested and they have stopped me downstairs and she tells law enforcement he has two more rocks similar to the ones he gave me." The State objected, "[T]his goes beyond legal principles," and the court sustained the objection. Defense counsel then discussed the meaning of "corroboration," and asked, "what is the evidence that you might look at to see if the testimony is backed up ... ?," to which the State objected, "again, that goes beyond the legal definition ... he is attempting to contract on a particular ...". The court again sustained the objection.

9. The statement was spoken in Spanish. An alternate translation was "they're still lacking more liars tomorrow." Garcia complains on appeal that the statement "was not properly before the court" because an official interpreter did not translate the statement; however, Garcia did not request an official translation and did not object to the judge's translation, thereby waiving any error. Tex. R. App. P. 33.1(a).

10. The evidence showed the statement was not directed to the juror, and the juror made no response after overhearing the statement.

11. Garcia complains on appeal that the judge did not ask whether the statement encouraged undue weight to be placed on the previous witnesses' testimony. After defense counsel requested that question be asked, the judge asked the next juror whether the statement "invited any comments or discussions concerning [the] statement?" and whether they "discuss[ed] anything about any other witnesses?" The juror replied "no" to both questions.

12. In fact, the other juror on the panel testified she was "not paying attention" because she was eating her lunch, and she did not know what the statement was about.

13. Garcia also argues the trial court prevented his attorney from developing unspecified "additional data" from the jurors which is necessary to conduct the harm analysis for constitutional error. See Tex. R. App. P. 44.2(a). Because we hold there was no error, we do not address Garcia's argument that he was denied the opportunity to develop information necessary to the harm analysis.

14. Jessica loaned her car to Sergio Aldape prior to the murder.

15. The prosecutor in this case did not learn of the existence of the tape until April 29, 2003, during Garcia's trial.

16. The jury heard testimony about the tape from several sources, learned the contents of the tape, and there is no indication that Garcia's cross-examination of the witnesses on this matter was ineffectual.