Enrique Dominguez, Sr. v. The State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-02-028-CR

ENRIQUE DOMINGUEZ, SR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # F34235

O P I N I O N

A jury found Enrique Dominguez, Sr. guilty of two counts of aggravated sexual assault and two counts of indecency with a child. The victim was his grand-daughter. The jury sentenced Dominguez to 99 years in prison for each count of aggravated sexual assault and 20 years in prison for each count of indecency with a child. Dominguez brings one issue on appeal. We affirm.

In his sole issue, Dominguez contends that the State failed to provide exculpatory evidence to him prior to trial. Approximately two weeks prior to trial, the Johnson County Sheriff s Office recovered two pornographic video tapes and one sex toy from Dominguez s former home. Dominguez learned about the recovered items during the trial.

The State has an affirmative duty to disclose exculpatory evidence that is material to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Williams v. State, 995 S.W.2d 754, 761 (Tex. App. San Antonio 1999, no pet.). When the State fails to disclose Brady material until after the trial has commenced, the inquiry is whether the defendant was prejudiced by the tardy disclosure. Yates v. State, 941 S.W.2d 357, 364 (Tex. App. Waco 1997, pet. ref d) (citing Palmer v. State, 902 S.W.2d 561, 565 (Tex. App. Houston [1st Dist.] 1995, no pet.)). Disclosure of Brady material at trial gives the accused an opportunity to request a continuance. Id. The failure to request a continuance waives any Brady violation. Id. See also Williams, 995 S.W.2d at 762; Cohen v. State, 966 S.W.2d 756, 763 (Tex. App. Beaumont 1997, pet. ref d).

During the first day of testimony, Detective Jason Buchanan testified, without objection, that the tapes and sex toy were given to him by Dominguez s wife when he was at her home prior to trial to take photographs. During the second day of testimony, Juana Dominguez identified the tapes and toy as the items she gave Detective Buchanan. She also testified that she had found the items when she moved furniture in her bedroom sometime after Dominguez was arrested. She put the items away out of her grandchildren s reach. When Buchanan came to the house before trial, she gave them to him. Dominguez objected when he thought the State was going to introduce the items through Juana, claiming surprise. The court overruled the objection when it was assured that the State was not going to introduce the items at the time. The court also informed Dominguez that before the State offered the tapes into evidence, counsel could watch them. The items were later introduced through Isabelle, the victim. She identified the tapes as those that Dominguez had her watch at the times he assaulted her. She also identified the toy as one that Dominguez used in his assaults on her. Dominguez renewed his objection made earlier and claimed that the evidence was more prejudicial than probative. The court overruled the objection to each item. Dominguez never requested a continuance.

Assuming the videos and sex toy were exculpatory, Dominguez waived his Brady violation claim by failing to request a continuance when he learned during trial that the State possessed the items. His sole issue is overruled.

The trial court s judgment is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 7, 2002

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