Page v. State

7 S.W.3d 202, 1999 WL 803427
CourtCourt of Appeals of Texas
DecidedDecember 13, 1999
Docket2-96-349-CR
StatusPublished
Cited by36 cases

This text of 7 S.W.3d 202 (Page 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
Page v. State, 7 S.W.3d 202, 1999 WL 803427 (Tex. Ct. App. 1999).

Opinions

OPINION

WILLIAM BRIGHAM, Justice.

A jury convicted Appellant James Eldon Page of driving while intoxicated (DWI). The trial court assessed punishment at 60 days’ confinement, probated for 24 months, and a $500 fíne. Appellant presents thirteen points for our review. We affirm.

I. EXCULPATORY EVIDENCE

In his first four points, Appellant contends that the trial court reversibly erred by not allowing any discovery and not including in the record requested information regarding the arresting officer’s arrest reports over a six-month period to attempt to show the officer’s bias. Appellant further asserts in point thirteen that the trial court erred by failing to allow him to include in the appellate record the subpoenaed information regarding the existence of a DWI task force. Appellant claims that the DWI task force information is material in that it could have been used to impeach the arresting officer by showing that he was under a DWI quota directive and, thus, had a motive to falsify his report charging Appellant with DWI.

Appellant was arrested by Lewisville Police Officer Paul Nathan for DWI on March 28, 1992. In Officer Nathan’s arrest report, he quoted Appellant as saying, “I’ve had too much to drink. I’m drunk, and I’ve been drinking at Sneaky Pete’s.” Before trial, Appellant requested the following documents by subpoena duces te-cum:

[A]ll documents ..., records and notes concerning any DWI task force, or equivalent, existing [on March 28, 1992], and comprised in whole or in part of members of the Lewisville Police Department, including any goals, either quantitative or qualitative, concerning the amount or type of arrests to be made, as well as the actual grants of funding for such task force or equivalent.
[[Image here]]
[A]ll documents concerning ... [Appellant’s] arrest on March 28, 1992, including but not limited to all arrest or offense reports filed by [Officer Nathan] from and including 12/28/91 through and including 6/28/92....

The trial court granted the State's motions for protective order and denied Appellant’s oral request for the court to either inspect the documents in camera, or have the State produce the documents for the limited purpose of the appellate record.

A. Discovery in Criminal Cases

It is settled law that a defendant’s due process rights are violated if he does not obtain, upon request, evidence in the State’s possession favorable to him “where the evidence is material either to [206]*206guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963). But there is no general right to discovery in a criminal case, and Brady does not create one. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). “To invoke Brady, the accused must present evidence that: (1) the prosecution suppressed or withheld evidence; (2) this evidence would have been favorable to the accused; and (3) this evidence would have been material to the accused’s defense.” Cruz v. State, 838 S.W.2d 682, 686 (Tex.App. — Houston [14th Dist.] 1992, pet. ref'd) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972)). Evidence is material if “there is a reasonable probability that, [had the evidence been disclosed to the defense], the result of the proceeding would have been different.... [A] ‘reasonable probability’ [is] ‘a probability sufficient to undermine confidence in the outcome.’” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); see also Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Brady evidence includes impeachment evidence as well as exculpatory evidence. See Bagley, 473 U.S. at 676,105 S.Ct. at 3380.

B. Officer Nathan’s ArRest Reports

Appellant subpoenaed Officer Nathan’s arrest reports for a six-month period surrounding Appellant’s arrest. He later narrowed his request to only- Officer Nathan’s DWI arrest reports for the 30-day period surrounding Appellant’s arrest. Appellant asserted that he was entitled to discover these reports, or at least to have the court review them in camera, because “I think the officer lied.” Appellant further stated that “I think I can show through the subpoenaed documents that over a six-month period, he has had other people say the identical thing or similar things, because it’s — it’s not credible.” Appellant presents to this court three things that he asserts constitute a showing that the requested documents would yield the result he suspected:

► The videotape taken of Appellant about 15 minutes after his arrest, which Appellant asserts contradicts any assertion that he was intoxicated;

► Appellant’s invocation of his constitutional right to remain silent after his arrest; and

► Officer Nathan’s alleged statement to Appellant, “You guys in your ties,” which Appellant argues demonstrates a bias against “white-collar types.”

We hold that, even assuming the requested arrest reports contained the information alleged by Appellant, the reports would not be material to the guilt or punishment of Appellant nor could they reasonably be used to impeach Officer Nathan. None of the factors cited above indicate even a remote likelihood that Officer Nathan was not being truthful in the arrest report, much less that he has been untruthful in making other unrelated arrests. Appellant effectively conceded this when asked by the trial court, “So it’s your representation to the Court that you’re aware of other situations in which the same circumstances arose and comparable statements were made in similar — or is that the representation that you’re aware of that?” to which Appellant replied, “No. That is not my representation.”

There is no evidence in the record that shows Officer Nathan falsified any arrest report. Consequently, there is no showing that Officer Nathan’s DWI arrest reports are material to this case. We will not order the State to produce information under Brady based merely on Appellant’s speculation that the requested information contained exculpatory evidence. See Gowan v. State, 927 S.W.2d 246, 250 (Tex.App. — Fort Worth 1996, pet. refd) (refusing to make “leap of faith” necessary to assume police file on seven unrelated rapes would show that rape for which defendant was charged was committed by another [207]*207assailant). We hold that the trial court did not err by granting the State’s motions for protection from the subpoena duces tecum. We overrule points one, two, three, and four.

C. Evidence of a DWI Task FoRce

Appellant asserts that the trial court erred in failing to order the State to produce DWI task force information for an in camera review.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rodney Wayne Allen v. State
473 S.W.3d 426 (Court of Appeals of Texas, 2015)
Herbert Richard Atkins v. State
Court of Appeals of Texas, 2015
William Owens v. State
381 S.W.3d 696 (Court of Appeals of Texas, 2012)
Tara Wilkerson v. State
Court of Appeals of Texas, 2012
Marchbanks v. State
341 S.W.3d 559 (Court of Appeals of Texas, 2011)
William Edward Marchbanks v. State
Court of Appeals of Texas, 2011
Kristin Vanwinkle v. State
Court of Appeals of Texas, 2010
Latoya Smith v. State
Court of Appeals of Texas, 2010
Smith v. State
314 S.W.3d 576 (Court of Appeals of Texas, 2010)
Lamont Marcelous Gilbert v. State
Court of Appeals of Texas, 2007
William Patrick Dudley v. State
Court of Appeals of Texas, 2006
Michaelwicz v. State
186 S.W.3d 601 (Court of Appeals of Texas, 2006)
Fusilier, Roman v. State
Court of Appeals of Texas, 2006
Stephen Michaelwicz v. State
Court of Appeals of Texas, 2006
Raymond F. Arredondo, III v. State
Court of Appeals of Texas, 2005
Melvin Goodspeed v. State
Court of Appeals of Texas, 2005
Gabriel Castillo v. State
Court of Appeals of Texas, 2005
Howard v. State
137 S.W.3d 282 (Court of Appeals of Texas, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
7 S.W.3d 202, 1999 WL 803427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/page-v-state-texapp-1999.