Garcia v. State

704 S.W.2d 491
CourtCourt of Appeals of Texas
DecidedJanuary 16, 1986
DocketNo. 13-85-324-CR
StatusPublished

This text of 704 S.W.2d 491 (Garcia v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garcia v. State, 704 S.W.2d 491 (Tex. Ct. App. 1986).

Opinion

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for the offense of attempted voluntary manslaughter in which the jury assessed punishment at eight years’ confinement and a $3,000 fine. Appellant does not challenge the sufficiency of the evidence to support the conviction. We affirm.

Appellant brings a multifarious ground of error contending that the trial court erred in refusing to grant a mistrial due to what he characterizes as the suppression of exculpatory evidence, and the state’s reliance on perjured testimony. He also argues that the trial court erred during the punishment phase of the trial by refusing to admit testimony which contradicted that of the state’s witnesses regarding the amount of beer consumed by these witnesses on the night in question.

The following facts are relevant to this appeal. Late on the night of May 1, 1983, in Crystal City, Zavala County, Texas, the victim and several friends (including Rosalinda Barajos, Roberto Limones and Aaron McNeil) were “hanging out” in the parking lot of a neighborhood grocery store. Appellant and a friend arrived and went into the grocery store to play video games. When appellant came out of the store, he had a heated argument with the victim, and the two began to fight. There is conflicting evidence as to who started the fight and whether .others joined in. Appellant fled from the parking lot, and the victim and his friends pursued, but lost him. A short time later, while the victim and friends were parked in the parking lot of a nearby church, appellant arrived with a shotgun in hand. After a brief argument, appellant shot the victim at close range.

In response to questions by defense counsel, on cross-examination each of the state’s witnesses (the victim and several of his friends present either at the grocery store or at the shooting) admitted that they had been drinking beer that night. Rosalinda Barajos testified that the victim and his friends had been “drinking a little bit.” Roberto Limones stated that they had “about three beers or less.” Aaron McNeil agreed when asked if they had had “a few drinks.” The victim testified that he had “just about two beers” that night.

Appellant contends that the state’s witnesses lied about how much alcohol they had had to drink that evening. During the punishment phase of the trial, the defense proffered the testimony of Robert Vargas (a friend of the victim who had been with [497]*497the victim that evening and was present during the fight). Vargas testified (on bill of exception) that the state’s witnesses all drank much more beer that evening than they had admitted in court. Specifically, he stated that the victim actually had seven or eight beers before the fight. Vargas admitted that he had not told the police the amount of beer they had consumed.

In his brief, appellant’s counsel (at trial and on appeal) states that Vargas approached the prosecutor with this information the morning before trial, but that Vargas did not tell him about it until sometime that afternoon, after the jury found appellant guilty, but before the punishment phase of the trial. The record, however, is not so clear as to the sequence of events or as to when the prosecutor learned of this information.

The trial court refused to admit Vargas’ testimony during the punishment phase of the trial. Appellant made a bill of exceptions and moved for a mistrial based on the suppression of Robert Vargas’ testimony and the state’s reliance on perjured testimony. The motion for mistrial was denied.

It is a violation of due process that requires reversal if a prosecutor actively suppresses evidence which might exonerate an accused or be of material importance to his defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Means v. State, 429 S.W.2d 490, 494 (Tex.Crim.App.1968). Reversible error also occurs if a prosecutor negligently or inadvertently fails to disclose evidence which is beneficial to the defense. Means v. State, 429 S.W.2d at 494; Allen v. State, 658 S.W.2d 642, 646 (Tex.App.—Amarillo 1983, no pet.). This prohibition applies even though the evidence only goes to the credibility of a witness because generally a jury’s estimate of the truthfulness and reliability of a witness may be determinative of guilt or innocence. Burkhalter v. State, 493 S.W.2d 214, 218 (Tex.Crim.App.1973), cert. denied, 414 U.S. 1000, 94 S.Ct. 354, 38 L.Ed.2d 236 (1973).

It appears from the record that the prosecutor was not aware of this testimony until just prior to or during the trial, and he did not disclose it to defense cousel. Appellant’s attorney apparently did not learn of this information until after the jury had found appellant guilty. These facts only establish that the state failed to disclose some type of information to the defense.

To make a case under Brady, the appellant is required to prove the “suppressed” evidence was material to his defense. Brady, 373 U.S. at 87, 83 S.Ct. at 1196; Crutcher v. State, 481 S.W.2d 113, 116 (Tex.Crim.App.1972). Appellant argues Vargas’ testimony was material as it would have served to impeach the credibility of the state’s witnesses, apparently on the theory that if they lied about how much beer they consumed that night over a year before, they might also lie about having seen appellant shoot the victim at close range with a shotgun.

The test to be applied in cases of prosecutorial suppression of evidence is whether the testimony may have had an effect on the outcome of the trial. Napue v. Illinois, 360 U.S. 264, 272, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959); Love v. State, 533 S.W.2d 6, 9 (Tex.Crim.App.1976); Means, 429 S.W.2d at 494. In the instant case, even if this testimony had been admitted and had been believed by the jury, it was not inconsistent with the state’s case and was very unlikely to have affected the determination of guilt. See Means, at 495.

On cross-examination during the penalty stage of the trial, appellant, himself, admitted shooting the victim. Prosecutor: “Isn’t it a fact that you intentionally and knowingly shot Joe Flores?” Appellant: “Yep, I shot him, but — .” Prosecutor: “You shot him in the chest, didn’t you?” Appellant: “Yes.”

It has long been held that evidence presented at the punishment phase may be considered in determining whether the evidence is sufficient to sustain a guilty verdict for the primary offense. DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Crim.App.1985). Thus, we may look to the evidence in the penalty stage of the trial in deter[498]*498mining whether this nondisclosure by the state may have affected the outcome of this trial.

Considering the eye-witness accounts of the shooting and the appellant’s own confession at the penalty phase, we characterize the evidence against appellant as overwhelming.

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Related

Napue v. Illinois
360 U.S. 264 (Supreme Court, 1959)
Brady v. Maryland
373 U.S. 83 (Supreme Court, 1963)
Luck v. State
588 S.W.2d 371 (Court of Criminal Appeals of Texas, 1979)
Williams v. State
535 S.W.2d 637 (Court of Criminal Appeals of Texas, 1976)
Humphrey v. State
646 S.W.2d 949 (Court of Criminal Appeals of Texas, 1983)
DeGarmo v. State
691 S.W.2d 657 (Court of Criminal Appeals of Texas, 1985)
Sims v. State
240 S.W.2d 297 (Court of Criminal Appeals of Texas, 1951)
Allen v. State
658 S.W.2d 642 (Court of Appeals of Texas, 1983)
Crutcher v. State
481 S.W.2d 113 (Court of Criminal Appeals of Texas, 1972)
Thompson v. State
310 S.W.2d 108 (Court of Criminal Appeals of Texas, 1957)
Stiehl v. State
585 S.W.2d 716 (Court of Criminal Appeals of Texas, 1979)
Rodriquez v. State
641 S.W.2d 669 (Court of Appeals of Texas, 1983)
Davis v. State
533 S.W.2d 6 (Court of Criminal Appeals of Texas, 1976)
Means v. State
429 S.W.2d 490 (Court of Criminal Appeals of Texas, 1968)
Burkhalter v. State
493 S.W.2d 214 (Court of Criminal Appeals of Texas, 1973)
Allaben v. State
418 S.W.2d 517 (Court of Criminal Appeals of Texas, 1967)
Brazile v. State
497 S.W.2d 302 (Court of Criminal Appeals of Texas, 1973)

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Bluebook (online)
704 S.W.2d 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-state-texapp-1986.