John Paul Starr v. The State of Texas--Appeal from 3rd District Court of Anderson County

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NO. 12-01-00219-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JOHN PAUL STARR,

 
APPEAL FROM THE THIRD

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
ANDERSON COUNTY, TEXAS
PER CURIAM

Appellant John Paul Starr pleaded guilty to the offense of Aggravated Assault with a Deadly Weapon. The jury assessed punishment at five years of imprisonment. On appeal, Appellant complains that the trial court erred when it refused to grant a mistrial based upon the State's failure to disclose the felony conviction of one of its witnesses. We affirm.

 

Background

Appellant testified at the punishment phase of his trial. He admitted that he became angry when he discovered that his friend, A. J. Roberson, was having an affair with his wife. Appellant asked his nephew to drive him to Roberson's residence, at which time Appellant confronted Roberson with a shotgun, purportedly just to scare him. A scuffle ensued, at which time Roberson gained control of the gun. Appellant left and Roberson called the police.

Roberson testified to substantially the same facts, except that he maintained that during the struggle, the gun discharged, with the bullet lodging in the door frame. Police officers provided pictures of the bullet and bullet hole, and testified that the bullet had, in fact, been discharged from Appellant's gun. Appellant, however, denied ever firing the gun.

 

Failure to Disclose Felony Conviction

In his sole issue, Appellant complains that the trial court erred when it refused to grant his motion for a mistrial. Appellant argues that a mistrial was proper because the State failed to disclose to the defense that a prosecution witness, Chris Bailey, had a felony conviction. Consequently, according to Appellant his attorney was unable to impeach Bailey, causing him prejudice.

Bailey testified that he went to visit a friend, and Appellant was there pulling up carpet. According to Bailey, for some unknown reason, Appellant attacked him, hitting him first with a shovel, and then with his fist. Bailey's injuries required medical attention. Upon cross-examination, Bailey admitted that he never actually saw Appellant hit him, but assumed that it was he who did so. He also conceded that he really could not say with certainty who attacked him.

Later in the trial proceedings, Larry Lennox was called to the stand as a defense witness. He testified that he knew Bailey, and that he was present when Bailey was assaulted. Lennox averred that a man by the name of Ronnie Johnson, not Appellant, hit Bailey with a shovel. He also stated that Appellant hit Bailey with his fist only after he asked Bailey three times to leave the property, but he refused to do so. Upon redirect, Appellant's attorney asked Lennox where he met Bailey, to which he replied the Texas Department of Corrections. Upon further questioning, Lennox testified that Bailey had been in prison for committing the felony of car theft.

After Bailey's felony came to light, defense moved for a mistrial because the State had not disclosed his conviction. In the alternative, Appellant's attorney requested that Bailey's testimony be stricken in its entirety. The prosecutor stated that she did not know about Bailey's felony conviction until she heard Lennox's testimony. She argued that the jury now knew about Bailey's conviction, so no harm had been done. The trial judge ruled that he would order the jury to ignore Bailey's testimony, which he did.

Standard of Review

The issue before us is a nondisclosure Brady v. Maryland issue. 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Appellant's due process rights were violated by the nondisclosure if:

 

[T]he prosecutor (1) failed to disclose evidence (2) favorable to the accused and (3) the evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

 

Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). Favorable evidence is defined as, ". . . any evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal." Id. (citing Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)). This includes exculpatory and impeachment evidence. Impeachment evidence is evidence "which is offered to dispute, disparage, deny, or contradict." Id.

However, if the evidence is turned over in time for the defendant to use it in his defense, the defendant's Brady claim fails. Id. The issue then becomes whether or not the tardy disclosure prejudices the defendant. Id. The error must be examined in the context of the entire record, and in the context of the overall strength of the State's case. Thomas v. State, 841 S.W.2d 399, 404-05 (Tex. Crim. App. 1992).

Analysis

In the context of the entire record, and in the context of the overall strength of the State's case, we hold that the failure to disclose Bailey's felony conviction until trial did not prejudice the defense. There is not a reasonable probability that had the conviction been timely disclosed, the outcome of the punishment trial would have been different. Bailey's testimony was peripheral at best, and he was not even sure that it was Appellant who hit him. Furthermore, there was extensive testimony at trial that Appellant had engaged in other violent acts, especially against his wife. Additionally, the conviction was made known to the jury, and the trial court ordered Bailey's testimony to be disregarded. Bailey's testimony, therefore, cannot be said to have undermined confidence in the punishment trial's outcome. See Shanks v. State, 13 S.W.3d 83, 86 (Tex. App.- Texarkana 2000, no pet.). Accordingly, we overrule Appellant's sole issue.

We affirm the judgment of the trial court.

Opinion delivered April 30, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

 
DO NOT PUBLISH