Kirk Alan Pearson v. State

• Court: Court of Appeals of Texas
• Decided: September 3, 2020
• Docket: 02-19-00284-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00284-CR ___________________________

KIRK ALAN PEARSON, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 2 Tarrant County, Texas Trial Court No. 1522986

Before Gabriel, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

In this appeal of his misdemeanor family-violence assault conviction, appellant

Kirk Alan Pearson challenges the trial court’s refusal to order a family-violence center

to produce the complainant’s records. See Tex. Fam. Code Ann. § 93.002. Because

the trial court did not err by declining to order the records’ production after an in

camera review, we affirm the trial court’s judgment.

I. BACKGROUND

Pearson was accused of assaulting his former girlfriend, Marlie, by throwing a

tricycle at her, grabbing her face and neck and throwing her to the ground, and hitting

her with their car. Before trial, Pearson tried to subpoena documents related to

Marlie in the possession of One Safe Place, a local family-violence center. See id.

§ 93.001(2) (defining family-violence centers). The trial court quashed the subpoena,

but Pearson continues to insist that documents from One Safe Place contained

material evidence that should have been given to him.

A. PRETRIAL HEARINGS AND RULINGS

At a December 3, 2018 hearing, One Safe Place’s Vice President and Director

Michelle Morgan described One Safe Place as one part of the Family Justice Center, a

“partnership of agencies that provide services to victims of domestic violence.” One

Safe Place staff conduct the initial intake screening of domestic-violence

complainants, which includes collecting demographic information, conducting an

evidence-based danger assessment to determine the victim’s risk level, planning safety

2 measures, and identifying the complainant’s options. In addition to that information,

One Safe Place records can include a complainant’s description of abuse, referral

forms, and therapy records.

Morgan maintained that One Safe Place is prohibited by Chapter 93 of the

Texas Family Code, the Violence Against Women Act, and the Victims of Crime Acts

from releasing client information or records. While clients can consent to One Safe

Place’s release of information to third parties—including One Safe Place’s partner

agencies—Morgan testified that the standard consent form does not give it

permission to release client records to a criminal-defense attorney. However,

according to Morgan, One Safe Place “[o]ccasionally” interacts with and provides

information to the district attorney’s office, but only with the complainant’s consent.

At the end of the December 3 hearing, the trial court quashed Pearson’s

subpoena. In a short hearing ten days later, the trial court denied Pearson’s request

for in camera review of the One Safe Place records. But at a third hearing on

February 21, 2019, the trial court reconsidered and offered to review the documents

in camera, and the defense agreed it would be appropriate.

When the trial was held in June, Pearson’s counsel stated on the record

immediately before voir dire that the trial court had initially determined that some of

the One Safe Place records contained material information and set a date for their

disclosure but later changed his mind and found the records did not contain material

information. The trial court neither confirmed nor denied the defense’s assertion, but

3 it did perform another in camera review of the One Safe Place records and the next

day announced its finding that the records did not contain any Brady material or

information material in the case. See Brady v. Maryland, 373 U.S. 83, 87 (1963). The

records were sealed and included in the appellate record for our review.

B. TRIAL TESTIMONY

The trial court having finally refused to compel the production of One Safe

Place records, the trial began. Marlie testified first and described her tumultuous ten-

month relationship with Pearson. In early 2017, they moved into a house together

with her three children and two of his. Marlie testified that it only took about three

months for their relationship to become violent. She described Pearson as insecure

and controlling, testifying that he did not allow Marlie to get a job, drive the couples’

shared vehicle, freely use a cell phone, or take a shower with the bathroom door

closed. She averred that he threatened to undermine her ongoing custody battle with

an ex, to send naked pictures of her to people, and to tell people that she had

attempted suicide. She alleged that in July 2017, Pearson choked her with a

PlayStation cord because he thought she was “being shady” when she tried to go

outside and smoke. The next month, he slapped her when she asked for help with

their children.

Things reached a peak on October 20, 2017, when an argument erupted

between them after two of the children got into a fight. Marlie became upset when

Pearson minimized her concerns about his son’s bullying, and then Pearson threw a

4 child’s tricycle at her, “ran up the driveway and he grabbed [her] by the side of [her]

face and [her] neck and threw [her] on the ground.” A neighbor testified that she

heard Pearson yelling and saw him throw the tricycle into the garage and then “a bit

of a scuffle” between him and Marlie. Marlie recounted how Pearson began

screaming at her, told her not to call the police, and then coached his two children on

what to say if the police arrived.

With police on the way, Pearson tried to quickly leave in their car and hit Marlie

with the car when she tried to take a photo of the license plate. She testified that he

hit her four times with the car and that each time she was hit, she tried to back up and

move out of the way, but “he would swing the car the other way to hit [her].” The

neighbor confirmed that Pearson backed the car into Marlie “more than once but less

than four times.” He then screamed at her and “took off”; he was not there when the

police arrived. Photographs of Marlie’s injuries—road rash on her leg, marks,

swelling and bruising—were admitted and shown to the jury.

Despite her report to the police and the ensuing assault charge, Pearson

continued to make contact with Marlie by driving past her home, messaging her, and

contacting her family.

Part of Pearson’s strategy at trial was to highlight minor inconsistencies

between what Marlie told the responding and investigating officers, the district

attorney’s office, and the jury in her trial testimony. She admitted at trial that she told

the responding police officers that Pearson had never been violent before. Other

5 inconsistencies included how many times he hit her with the car and how far away he

was when he threw the tricycle.

The jury found Pearson guilty of misdemeanor family-violence assault, and the

trial court assessed a 180-day sentence suspended for fifteen months.

II. DISCUSSION

Pearson brings three points on appeal, all of which complain of the trial court’s

refusal to compel the production of records from One Safe Place. In his first two

points, he argues that the trial court erred by determining that the records were not

material to the case, and in his third issue, he argues that the State should have been

ordered to produce the records in compliance with Article 39.14 of the Code of

Criminal Procedure. We disagree with Pearson on all three points.

A. MATERIALITY OF ONE SAFE PLACE’S RECORDS

Chapter 93 of the Texas Family Code provides for the confidentiality of certain

communications between victims of family violence and advocates at family violence

centers. See Tex. Fam. Code. Ann. §§ 93.001–.004. With certain exceptions, the

statue shields those records from discovery. Id. at §§ 93.002, .004.

In his first two points, Pearson asserts that because the trial court invoked

Chapter 93 to prevent him from acquiring the records of Marlie’s interview at One

Safe Place, the statute violated his constitutional rights to confront his accuser (point

one) and to present a defense (point two).

6 Pearson essentially concedes that the procedure the trial court employed—

reviewing the records in camera to determine whether they contained any material

information that should be discoverable—was the correct one.1 He simply urges us to

review the trial court’s conclusion that the records did not contain any material

information and, if we determine that the trial court was incorrect, to hold that the

statute was unconstitutional as applied to his case. Pearson’s first two points, then,

can be boiled down to a determination of whether the records contained material

information under the meaning of Brady. He then argues in his third point that if the

records contained material information, the State should have been ordered to

produce the records in compliance with Article 39.14 of the Code of Criminal

Procedure.

We review the trial court’s decision not to compel production of confidential

information for an abuse of discretion. See Dixon v. State, 923 S.W.2d 161, 167 (Tex.

App.—Fort Worth 1996), rev’d on other grounds, 928 S.W.2d 564 (Tex. Crim. App.

1996). A trial court abuses its discretion if its ruling is outside the “zone of reasonable

disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op.

on reh’g).

1 Pearson cited a litany of cases that could support the position that an in camera review was appropriate. Because Pearson does not challenge the trial court’s in camera review and because we hold that the trial court did not err by declining to compel production of the requested records, we need not decide whether an in camera review is appropriate in the context of the assertion of privilege under Chapter 93.

7 A criminal defendant is entitled to any favorable and material evidence. See Ex

parte Lalonde, 570 S.W.3d 716, 724 (Tex. Crim. App. 2019) (discussing Brady, 373 U.S.

at 87). Favorable evidence is that which “may make a difference between conviction

and acquittal and includes both exculpatory and impeachment evidence.” Id. (quoting

Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006)). “Evidence is material

only if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Id. (quoting United

States v. Bagley, 473 U.S. 667, 682 (1985)). We therefore evaluate the alleged error in

the context of the entire record and overall strength of the State’s case in order to

determine if there is a reasonable probability sufficient to undermine confidence in

the outcome. Id. (quoting Bagley, 473 U.S. at 682 and Harm, 183 S.W.3d at 409).

We have reviewed the sealed records and considered them in light of the

evidence and testimony presented at trial and the defense’s arguments. After our

thorough review, we hold that the trial court did not abuse its discretion because the

records did not contain material or favorable evidence, and there is not a reasonable

probability that the result of the proceeding would have differed if the records had

been ordered produced. See id.; James v. State, 47 S.W.3d 710, 712 (Tex. App.—

Texarkana 2001, no pet.). As a result, Chapter 93 as applied in this case did not

violate Pearson’s constitutional right to confront Marlie, nor did it deprive him of due

process. Cf. Fears v. State, 479 S.W.3d 315, 329–30 (Tex. App.—Corpus Christi–

Edinburg 2015, pet. ref’d) (holding nondisclosure of reports arising from investigation

8 of suspected child abuse did not violate due process in sexual-assaults-of-a-child

prosecution because Family Code Section 261.201 classified such reports as

confidential and provided in camera process for admission). We accordingly overrule

Pearson’s first two issues.

B. DISCLOSURE OF RECORDS

In his third point, Pearson argues that the trial court erred by refusing to order

the State to turn over the One Safe Place records. Relying on Article 39.14’s

requirement that the State produce anything that is not protected by privilege and that

“constitute[s] or contain[s] evidence material to any matter involved in the action and

that are in the possession, custody, or control of the state or any person under

contract with the state” he argues that the State was required to produce the records

of One Safe Place. Tex. Code Crim. Proc. Ann. art. 39.14(a), (h) (further requiring the

State to produce “any exculpatory, impeachment, or mitigating document, item, or

information in the possession, custody, or control of the state that tends to negate the

guilt of the defendant or would tend to reduce the punishment for the offense

charged”).

Even if it were clear that One Safe Place is an agent of or in contract with the

State, see Branum v. State, 535 S.W.3d 217, 225–26 (Tex. App.—Fort Worth 2017, no

pet.), or that its records were otherwise within the control of the State—facts that

were disputed in the trial court—the evidence must still be material in order to require

the State to produce it. See Tex. Code Crim. Proc. Ann. art. 39.14(a), (h). Having held

9 that the records do not contain any evidence material to the prosecution, the State

was not bound to produce it. We overrule Pearson’s third point.

III. CONCLUSION

Having overruled each of Pearson’s points, we affirm the trial court’s judgment.

/s/ Lee Gabriel

Lee Gabriel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: September 03, 2020.