Having overruled both of Appellant's points, we affirm the trial court's judgment. v. << (2010)

Court of Appeals of Texas, Waco.

In the case now before us, given the trial court's encouragement to Appellant to follow the procedures outlined in subsection (b) of the statute and the trial court's assurance that the in camera review would then occur, we are not prepared to hold that the trial court abused its discretion by not reviewing the challenged document in camera.  Nevertheless, in the interest of justice, we have reviewed the sealed documents. A Brady violation does not occur if the 6 defendant, using reasonable diligence, could have otherwise obtained the information.6  As discussed more fully in the analysis of Appellant's second point, Appellant did not attempt to question Crystal or any other witness about the incident depicted in the challenged document, even though he knew the alleged date of the incident and the complainants involved in that incident by the time Crystal testified at trial. Further, the document sought by Appellant is not material in this case, given the state of the record.  Appellant argues that he needed the document to advance the defensive theory that he was aware of Crystal's violent tendencies and perceived that she was a danger to him.  Appellant did rely on that theory in argument, yet Appellant did not attempt to question the witnesses about any specific prior acts of violence allegedly committed by Crystal, not even that alleged in Defense Exhibit 1, admitted with no objection.  The documents in Defense Exhibit 1 name Crystal as the aggressor and Appellant as the complainant in an altercation that occurred prior to that for which Appellant was on trial.  Appellant also did not mention any prior acts of violence by Crystal in argument.  The State, on the other hand, referred to police reports offered into evidence by Appellant that allege prior acts of violence of both Appellant and Crystal and invited the jury to assess Crystal's credibility.  Because the trial court did not issue a final ruling barring Appellant from accessing the sealed document, Appellant did not use diligence in otherwise securing the information, and the sealed document was not material given Appellant's trial and argument decisions and the state of the record, we overrule Appellant's first point. In his second point,7 Appellant contends that “[t]he trial court erred by limiting the cross examination of defense counsel regarding prior incidents of violence such that Appellant's right of confrontation under the Sixth Amendment was denied.”  The trial court granted the State's motion in limine prohibiting Appellant from referring to the 2004 family violence incident involving Crystal, her former roommate, and the twelve-year-old child discussed in the sealed documents.  The trial court then stated, “[I]f it comes up during the course of the trial, then you'll approach the bench and advise me that ․ that issue is going to come up and we'll look at it again.”  Appellant points to no place in the record where he attempted to question Crystal or any other witness about any of her prior acts of violence or where he sought a trial ruling, as opposed to the preliminary ruling on the motion in limine, on the admissibility of such evidence.  Consequently, Appellant has preserved nothing for review.7  We overrule his second point. Having overruled both of Appellant's points, we affirm the trial court's judgment.

NO. 02-10-00013-CR

Decided: December 23, 2010