JESUS GALVEZ TOBON v. THE STATE OF TEXAS--Appeal from 92nd District Court of Hidalgo County

NUMBER 13-04-600-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JESUS GALVEZ TOBON, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

 
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Rodriguez

Appellant, Jesus Galvez Tobon, was indicted for the offense of murder. See Tex. Pen. Code Ann. 19.02(b)(1) (Vernon 2003). A jury found appellant guilty and assessed his punishment at forty years' imprisonment. By six issues, appellant asserts a Brady violation, complains of prosecutorial misconduct, and challenges the legal sufficiency of the evidence. We affirm.

I. Brady Claim

By issues one, two and four, appellant asserts that the prosecutor committed a Brady violation by allegedly willfully failing to provide discovery of an out-of-court identification made by Lee Roy Rivera, an eye witness who later testified as a State's witness. He contends that the photograph identification, although favorable to the State on its face, is exculpatory in nature because the presentation of the photograph to Rivera was impermissibly suggestive per se.

The Due Process Clause of the Fourteenth Amendment requires the State to disclose evidence that is favorable to a criminal defendant. Brady v. Maryland, 373 U.S. 83, 84-88 (1963); Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc). When the State fails to disclose this type of evidence, and the evidence is material either to guilt or to punishment, the State violates the defendant's due process rights irrespective of whether the State was acting in good faith or in bad faith. Brady, 373 U.S. at 84-88; Thomas, 841 S.W.2d at 404. The rule requires disclosure of both exculpatory and impeachment evidence. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Thomas, 841 S.W.2d at 404.

Appellant filed several pretrial motions to compel discovery of evidence. The specific issue of any identification of appellant that may have been made by Rivera was first raised at a pre-trial hearing on June 21, 2004. The next day, however, jury selection did not take place because Rivera was not present, and the trial court granted the State's motion for continuance. Appellant raised the identification issue at this time. At a hearing on July 8, 2004, the State moved for another continuance based on the continued absence of Rivera. In opposing the continuance, defense counsel challenged the State's need for Rivera's presence, arguing that there was no evidence that Rivera had ever identified appellant as the person who shot the victim. The continuance was granted.

The trial began in September 2004. After Rivera testified on direct examination that appellant shot David Ruiz, defense counsel questioned him about the lack of a physical description in his written statement to the police. Rivera testified that he had not given a physical description. On redirect, the following colloquy occurred:

Q: [Prosecutor]: Did the police ask you to identify [appellant] through any photographs when you gave your statement?

 

A: [Rivera]: Yeah.

 

Q: They asked you to identify him?

 

A: Yeah.

 

Q: Through a picture?

 

A: Yeah.

 

Q: Were you able to?

 

A: Yeah.

 

Q: Okay.

 

Following this testimony, defense counsel asked for a hearing outside the presence of the jury. Arguing that the identification issue had been raised twice before and he had been told twice "that there were no photo line-ups or no out-of-court identifications that were made by this witness to our client," defense counsel requested a mistrial. The prosecutor responded that he had provided everything that the Alton Police Department had given him, and that he had been assured that everything had been provided. The trial court denied the mistrial.

Later, the prosecutor advised the court that he had just spoken to Alton Police Investigator Jesus Enriquez who said that he had shown Rivera a booking photo. This booking photo was included in the State's file, but had neither been portrayed as an out of court identification or as being the source of any identification in any police report.

Outside the presence of the jury, Investigator Enriquez testified that he had shown appellant's booking photo to Rivera, and Rivera identified the man in the photo as the man he saw that night. The photo identification was not mentioned in the investigator's report. Investigator Enriquez agreed that he had told the prosecutor that "any pictures were in this report." Investigator Enriquez also testified that when he talked with Rivera, appellant had already been arrested based on a statement given by Adriana Lopez. Defense counsel again moved for a mistrial or, alternatively, for Rivera's testimony to be struck. The trial court denied the motion and ordered the jury to disregard the testimony about the prior photographic identification. Appellant did not seek a continuance.

When the State's failure to disclose Brady material is discovered during trial, the accused is entitled to a recess to obtain production of the material, even where the defense did not make pretrial efforts to obtain it. Crawford v. State, 892 S.W.2d 1, 4 (Tex. Crim. App. 1994) (en banc). The accused must then request a postponement or seek a continuance; otherwise, the accused waives any complaint of surprise in the State's failure to disclose the material earlier. Lindley v. State, 635 S.W.2d 541, 543 (Tex. Crim. App. [Panel Op.] 1982); Zule v. State, 802 S.W.2d 28, 33 (Tex. App.-Corpus Christi 1990, pet. ref'd) (holding Brady claim was waived where defense counsel moved for mistrial but not for continuance). This procedure adequately satisfies the due process requirements of Brady. Payne v. State, 516 S.W.2d 675, 677 (Tex. Crim. App. 1974). "[W]hen a party's first action is to move for mistrial, the scope of appellate review is limited to the question [of] whether the trial court erred in not taking the most serious action of ending the trial[.]" Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (en banc).

Assuming, without deciding, that the booking photograph was exculpatory and material, appellant did not request a postponement during the trial when he became aware of the photograph. Although appellant moved for a mistrial, he did not move for a continuance. He asked for Rivera's testimony to be struck, and the trial court ordered the jury to disregard the testimony about the prior photographic identification. By not requesting a continuance, appellant made the tactical decision to proceed with the trial, aware of the previously undisclosed evidence and aware that the jury had been instructed to disregard the testimony about which he complained. See Zule, 802 S.W.2d at 33. Because appellant failed to request a postponement or seek a continuance, he has waived his Brady claim. Lindley, 635 S.W.2d at 544; see also Zule, 802 S.W.2d at 33.

Furthermore, because a continuance was not requested, our review is limited to the issue of whether the trial court erred by not granting a mistrial. See Young, 137 S.W.3d at 69. Appellant has not raised this issue on appeal.

Appellant's first, second, and fourth issues are overruled.

II. Prosecutorial Misconduct

In his third issue, appellant asserts that the prosecutor "committed misconduct by eliciting the identification testimony from [Rivera], even after a court's order disallowing said evidence," and that this amounted to reversible error. In his fifth issue, appellant asserts that this conduct violated his due process rights.

Appellant has provided no authority to support his contentions regarding prosecutorial misconduct. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). By raising the issue of prosecutorial misconduct and failing to cite authority to support his contentions, if any, appellant has waived error on this issue. See Tufele v. State, 130 S.W.3d 267, 271 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). We overrule appellant's third and fifth issues.

III. Legal Sufficiency

Appellant contends by his sixth issue that the State's evidence is legally insufficient to support his conviction.

A. Standard of Review

In evaluating the legal sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); Hernandez v. State, 52 S.W.3d 268, 277 (Tex. App.-Corpus Christi 2001, no pet.); see Bobo v. State, 843 S.W.2d 572, 575-76 (Tex. Crim. App. 1992) (en banc) (providing that when evaluating the sufficiency of the evidence, the reviewing court must look at all the evidence, whether properly or improperly admitted). The due process guarantee requires an appellate court to reverse and order a judgment of acquittal only if, given all the evidence, a rational jury would necessarily entertain a reasonable doubt as to the defendant's guilt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc).

The trier of fact has the responsibility of resolving conflicts in the testimony, weighing the evidence and drawing reasonable inferences from basic facts to ultimate facts; it is the sole judge of the weight and credibility of the evidence. Jackson, 443 U.S. at 319. When conducting a legal sufficiency review, an appellate court may not reevaluate the weight and credibility of the evidence or substitute its judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (en banc). The reviewing court may act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

B. Analysis A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. 19.02(b)(1) (Vernon 2003).

In this case, viewing the evidence, whether properly or improperly admitted, in the light most favorable to the jury's verdict and deferring to the jury on its weight and credibility, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Rivera, who witnessed the murder of David Ruiz from five feet away, testified that appellant was the man who had shot Ruiz as Ruiz walked away from a verbal confrontation. Another eyewitness, Adriana Lopez, also testified that appellant was the man who shot Ruiz from behind. Appellant's jail cell mate testified that appellant had bragged about shooting a man at his girlfriend's house. Dr. Fulgencio Salinas, who conducted the autopsy on Ruiz, testified that he died from a single gunshot wound to the back of his head. Based on this evidence, a rational jury could have found appellant guilty of the murder. Thus, we conclude that the evidence is legally sufficient to support appellant's conviction. We overrule appellant's sixth issue.

IV. Conclusion

We affirm the judgment of the trial court.

NELDA RODRIGUEZ

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and

filed this 10th day of August, 2006.