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Zachery James HERNANDEZ, Appellant v. The STATE of Texas, Appellee
In this appeal from a conviction for aggravated assault with a deadly weapon, we consider whether the evidence is legally sufficient to support the conviction, as well as several interrelated issues arising out of the prosecution's untimely disclosure of evidence.
The evidence was undisputed that appellant shot the complainant. Appellant claimed that he had acted in self-defense, but the prosecution disputed his version of events and his belief that the shooting was justified.
A. The Defense's Version of Events
Appellant testified that he and the complainant worked together as electricians for a large energy and chemical company. On the day of the shooting, they both appeared at work, received their paychecks, and were dismissed early because of inclement weather.
The complainant could not easily leave the jobsite because he carpooled with another coworker whose job was unaffected by the inclement weather. Rather than wait on the jobsite until the carpooler was released, the complainant asked to hang out with appellant and a mutual friend for the rest of the day. Appellant agreed, with the plan being that appellant would drive the complainant back to the jobsite later that afternoon so that the carpooler could take the complainant home.
Appellant and the complainant then went to a gas station, where they cashed their paychecks. Afterwards, they went to a grocery store, where they purchased alcohol and food. They spent the rest of the afternoon drinking, playing pool, and singing karaoke.
As the time got later in the day, the complainant's body posture began to change, and he indicated that he was nervous about being seen by the carpooler. The complainant asked if appellant could drive him home instead, and appellant agreed, even though the complainant lived more than an hour away.
On the drive home, the complainant began receiving multiple calls on his cellphone, but he did not answer any of them. When appellant asked about the missed calls, the complainant responded that the calls were from a creditor, to whom the complainant owed a lot of money. The complainant also explained that he did not have enough money to pay the creditor, and so he was ignoring the calls.
Once at home, the complainant asked to borrow some money from appellant, but appellant declined. The complainant then invited appellant inside to meet his girlfriend, and appellant obliged. They began drinking again, and the mood was light and friendly, until the complainant left the room and returned with a pistol. Appellant admired the weapon and asked to see it, but the complainant refused and put a bullet in the chamber instead. When appellant asked why the complainant had loaded the pistol, the complainant responded, “Oh, just in case.”
Appellant suggested that he should leave, but the complainant said, “No, man. You don't need to go anywhere.” Appellant acquiesced, and then his mind began to race with questions about the complainant's behavior throughout the day. He wondered whether the complainant was involved with dangerous people, and whether the complainant might try to make a move against him, considering that he had several hundred dollars on his person.
The complainant's girlfriend then began to make unusual statements, like saying that appellant was cute, and admiring the keys to his truck. Appellant believed that the complainant was getting irritated by these comments, and so appellant indicated again that he should go home. Appellant stood up to leave, and then the complainant put his arm around appellant's neck and said, “Hey, man. No, you ain't going nowhere. We're going to go smoke a cigarette real quick.”
Appellant felt uncomfortable, but he followed the complainant outside after the complainant put the pistol down on the kitchen counter. After finishing the cigarette, appellant reentered the house and saw that the complainant was following closely behind. Appellant then grabbed the pistol off of the kitchen counter and told the complainant, “Back the F up because I'm leaving this place.” The complainant charged at appellant instead, so appellant fired a single shot into the complainant's chest.
Appellant told the complainant's girlfriend to call for an ambulance, and then appellant immediately left. When he got home, he called 911, reported that he had shot the complainant in self-defense, and then peaceably turned himself in.
B. The Prosecution's Version of Events
The complainant survived the shooting, and his statements regarding the course of the day mostly aligned with appellant's statements, with some key differences.
As an initial matter, the complainant agreed with the early timeline of arriving at work, receiving his paycheck, and then being dismissed because of inclement weather. He also agreed that he spent the afternoon hanging out with appellant, that appellant ultimately gave him a ride home, and that they spent the evening together drinking and smoking.
However, the complainant testified that he never mentioned to appellant that he owed anybody money. The complainant also disagreed with appellant's statements about receiving phone calls from a creditor. The complainant explained that he owned a prepaid cellphone and that he had exhausted all of its minutes several months before the shooting. Without any minutes, he could neither make nor receive calls, unless he was using an app on a wi-fi network. On the day of the shooting, the complainant actually borrowed appellant's cellphone to let his girlfriend know his whereabouts.
The complainant also described the events at his own home differently. The complainant said that he was a gun enthusiast, and that he brought out the pistol simply to show it to appellant. Because appellant did not express any interest in holding it, the complainant left the pistol on the counter.
The complainant said that he never put appellant in any sort of headlock, nor did he ever charge at appellant. The complainant testified that when appellant came back inside the house after smoking his cigarette, appellant picked up the pistol and pulled the slide back, causing a live round to eject and then fall on the floor. The complainant bent over to pick up the live round, which is when appellant shot him in the chest.
Appellant never said anything to the complainant in the moments immediately preceding the shooting, and the complainant could not think of a single reason why appellant would have shot him. As he recalled the events of the night, the complainant said that there was nothing aggressive or disagreeable about either appellant or the topics of their conversation. Up until the shooting, their interactions had been “extremely pleasant.”
C. The Verdict
The jury apparently believed the complainant because it convicted appellant of the charged offense. The trial court then imposed a sentence of seven years' imprisonment.
SUFFICIENCY OF THE EVIDENCE
Appellant does not explicitly challenge the sufficiency of the evidence in his brief. Instead, he argues that “the verdict is contrary to the law and the evidence” because “the facts presented ․ clearly establish the legal defense of deadly force – self defense under Texas law.”
Insofar as appellant believes that he established his self-defense theory as a matter of law, his argument is flawed because “the issue of self-defense is an issue of fact to be determined by the jury.” See Braughton v. State, 569 S.W.3d 592, 609 (Tex. Crim. App. 2018). The prosecution's burden on that issue is merely one of persuasion—i.e., to disprove the claim of self-defense—and the prosecution satisfies that burden by proving that the defendant is guilty beyond a reasonable doubt. Id. at 608. Because the prosecution's burden requires the production of legally sufficient evidence, we construe appellant's argument as a challenge to the sufficiency of the evidence. See Bogan v. State, 78 Tex.Crim. 86, 180 S.W. 247, 247–48 (1915) (holding that an argument that a verdict is contrary to the law and evidence only raises a challenge to the sufficiency of the evidence).
In this sufficiency challenge, we must determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and against appellant on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The offense here was aggravated assault with a deadly weapon, which meant that the prosecution had the burden of proving the following essential elements: (1) appellant intentionally, knowingly, or recklessly caused bodily injury to the complainant, and (2) appellant used or exhibited a deadly weapon during the commission of the assault. See Tex. Penal Code § 22.02. When deciding whether these elements were proven beyond a reasonable doubt, we consider all of the evidence in the light most favorable to the jury's decision. See Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015).
Appellant's own testimony established the essential elements of the offense. He admitted that he shot the complainant in the chest, thereby causing bodily injury, and during the commission of that assault, he used a pistol, which is a deadly weapon. Based on these admissions, the jury could have found the essential elements of the offense beyond a reasonable doubt.
The jury could have likewise found against appellant on the issue of self-defense. Appellant admitted that the complainant did not have a gun, a knife, a baseball bat, or any other sort of weapon at the time of the shooting. Appellant also admitted that the complainant never once communicated a verbal threat. Appellant claimed that he perceived a threat because the complainant charged at him, but there was a conflict on this point, as the complainant testified that he merely bent down to pick up a live round on the floor. Because we presume that the jury credited the complainant's testimony under our standard of review, we conclude that the jury could have determined that appellant did not reasonably perceive an immediate threat of unlawful force from the complainant. That conclusion likewise means that the jury had sufficient evidence to find that appellant's use of force against the complainant was not justified. See Tex. Penal Code § 9.31 (enumerating the requirements for the use of force in self-defense).
We overrule appellant's argument that he clearly established his claim of self-defense.
UNTIMELY DISCLOSURE OF EVIDENCE
After he was discharged from the hospital, the complainant was interviewed by a detective, who informed the complainant that appellant had called 911 and turned himself in. The detective also relayed the contents of appellant's conversation with the 911 dispatcher, and more particularly, how appellant claimed that the complainant had received several phone calls from a creditor during the drive home. The complainant responded with disbelief, asserting that he had no minutes on his cellphone and that he could not have received any phone calls. The complainant then consented to have his cellphone imaged to prove that he did not receive any phone calls.
The cellphone was extracted and its data was saved to a disc, but the disc itself was never turned over to the defense in advance of trial because the detective apparently misplaced it, possibly during her change of employment between different law enforcement agencies. On the second day of trial, the disc was still not available, but the prosecution elicited testimony from the detective about the contents of the disc. The prosecution asked, “Do you recall whether or not you found or you saw anything on [the disc] that was relevant or that either backed up the defendant's story that there was a bunch of calls coming in at the time?” The detective answered, “I did not find anything relevant.”
After the detective testified, she went home and located the disc. She then notified the prosecution the following morning.
Before the trial resumed, the prosecution disclosed to the defense and to the trial court that the disc had been found. The defense immediately moved for a mistrial, accusing the prosecution of misconduct and of intentionally violating the rules of discovery. The trial court denied the motion for mistrial, but ruled that the prosecution would not be allowed to offer the disc into evidence. The trial court also ruled that the defense could offer the disc into evidence if the defense found anything beneficial on the disc.
A recess was taken, in which the defense was given time to examine the contents of the disc. At the end of the recess, the defense asserted that it had not finished reviewing the disc, and that it may seek out an expert to analyze all of the data.
The trial court then called on the police sergeant who had performed the data extraction. While still outside the presence of the jury, the trial court asked the sergeant if the disc contained the call log from the cellphone, or if the sergeant could determine whether calls had been deleted from the call log. The sergeant responded that his impression was that the disc did not contain the call log, but he would need additional time to verify that belief and to determine whether any calls had been deleted.
The defense interjected that it was uncomfortable with relying on the representations of the sergeant, who was a witness for the prosecution. The trial court reiterated that the prosecution could not use the disc in any event, and that the disc would be admitted for record purposes only, unless the defense affirmatively sought its admission for some other purpose. The defense ultimately decided to not use the disc.
After the trial was over, the defense moved for a new trial on the basis that the prosecution had failed to turn over the disc in response to a timely discovery request. That motion was denied by operation of law.
Appellant now complains in several issues that the trial court should have granted a continuance, a mistrial, or a new trial, all because of the prosecution's untimely disclosure of the disc. We examine each of these points separately.
A. Motion for Continuance
Appellant argues that the trial court abused its discretion by denying a motion for continuance, but he does not reveal where in the record that he ever requested a continuance. From what we can discern, the statement that most nearly approximates a motion for continuance is defense counsel's representation to the trial court that he “need[s] to have somebody that understands all this much better than me review it.” If that statement can be construed as a motion for continuance, appellant never obtained an adverse ruling, which is necessary to preserve error. See Tex. R. App. P. 33.1.
Even if we were to assume for the sake of argument that appellant implicitly received an adverse ruling, this appellate complaint would still fail because counsel's statement was oral, whereas motions for continuance must be written and sworn. See Tex. Code Crim. Proc. arts. 29.03, 29.08; Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009), declined to follow on other grounds by Grado v. State, 445 S.W.3d 736 (Tex. Crim. App. 2014). Because the oral motion, if any, did not comply with the applicable rules, we cannot say that the trial court abused its discretion by denying it. See Gentry v. State, 770 S.W.2d 780, 786 (Tex. Crim. App. 1988) (finding no abuse of discretion where the defendant's mid-trial motion for continuance was oral, rather than written and sworn).
B. Motion for Mistrial
Unlike with the motion for continuance, the record unmistakably establishes that appellant moved for a mistrial, and that the trial court denied his motion. We review such rulings for an abuse of discretion. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Because a mistrial is a serious remedy, it should be reserved for only extreme situations of highly prejudicial and incurable misconduct. Id. If the trial court could have reasonably determined that the challenged misconduct did not rise to that level, then the trial court's denial of a motion for mistrial must be upheld. Id.
Appellant argued in the trial court that he was entitled to a mistrial because the prosecution had engaged in intentional misconduct by withholding the disc from discovery and then by deliberately disclosing the disc in the middle of trial when the defense could not adequately review or analyze its voluminous contents. The trial court rejected that argument and refused to make a finding of bad faith: “I'm not saying the State hid anything.” That ruling was within the zone of reasonable disagreement.
At the time of the motion for mistrial, the trial court had already heard the live testimony of the detective, who opined that the disc must have been misplaced when she closed out all of her files because she was transferring to another law enforcement agency. The detective also testified that she had previously searched for the disc at the prosecution's request, and that she had found neither a physical copy of the disc nor a digital copy on her hard drive. The trial court could have reasonably accepted the detective's explanations and found that the untimely disclosure had been the result of negligence, not bad faith. And because that implied finding would have been based on an evaluation of the detective's credibility and demeanor, we have no authority to disturb it.
For similar reasons, the trial court could have also determined that the detective had no improper motive in withholding the disc because both the complainant and his girlfriend had testified that there were no minutes on the complainant's cellphone, which tends to corroborate the detective's ultimate opinion that there was no evidence on the disc relevant to appellant's defensive theory.
The record shows that the trial court was considerate of the defense's interests. Because the disclosure of the disc had been untimely, the trial court precluded the prosecution from offering it into evidence. Mindful that the disc might still contain evidence that was beneficial to appellant, the trial court also provided a recess for the defense to examine the disc and determine whether it should be introduced into evidence. As the trial court stated, “You're going to find out whether it's helpful or not, and if it is helpful to your case, you're going to get to use it․ It's that simple, so you're not at any disadvantage.”
We agree with the trial court that the untimely disclosure of the disc was not the type of extreme occurrence that necessitated a mistrial. Lesser remedies were available, and the trial court provided them by preventing the prosecution from using the disc and by affording the defense the sole of option to offer the disc into evidence. The trial court could have further instructed the jury to disregard the detective's testimony, but the defense never made that request. Because there were less drastic means of addressing the prosecution's discovery violation, we conclude that the trial court did not abuse its discretion by denying appellant's motion for mistrial. Cf. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (concluding that the trial court did not abuse its discretion by denying a motion for mistrial in response to an alleged discovery violation because the defendant did not request the less drastic remedy of a continuance).
C. Motion for New Trial
Four days after the trial court rendered a judgment of conviction, the defense filed a motion arguing that the trial court should grant a new trial in the interest of justice because the prosecution had violated appellant's constitutional and statutory rights by failing to turn over the disc despite a timely discovery request. As stated above, the trial court denied the motion by operation of law.
We review the trial court's ruling on a motion for new trial for an abuse of discretion. See State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014). The test for abuse of discretion is not whether, in our opinion as an appellate court, the facts present an appropriate case for the trial court's action, but rather, whether the trial court acted without reference to any guiding rules or principles. Id.
A trial court properly grants a new trial when the defendant (1) articulates a valid legal claim in his motion for new trial, (2) produces evidence or points to evidence in the trial record that substantiates his legal claim, and (3) shows that he was prejudiced. See State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013).
In this case, appellant did not establish the third requirement that he was prejudiced by the untimely disclosure of the disc. Even though he had had several extra days to review the disc by the time he filed his motion for new trial, appellant did not include any facts in the motion itself showing that the disc contained evidence that was relevant to his defensive theory. Quite the opposite, his motion ended with a recitation of facts about an unrelated criminal defendant from a completely separate trial.
Appellant tries to make a claim for prejudice in his brief, asserting that he did not receive the cellphone extraction report until he filed his motion for new trial. He then contradicts that assertion by representing in the very next paragraph that he received the report eight months after he filed his motion for new trial, which was during the pendency of this appeal. Neither assertion is supported by a citation to the record, which indicates that appellant obtained access to the report when the trial court admitted the disc during the trial for purposes of the record.
Appellant also attaches certain exhibits to his brief, including various emails and an affidavit, all of which are outside the official appellate record, and none of which contains any facts showing that he was prejudiced.
He further relies on one other exhibit, an excerpt from the cellphone extraction report, which does happen to be part of the official appellate record. This exhibit contains information that tends to establish that the complainant's cellphone was active on the day of the offense. Appellant asserts that this activity corresponds with actual phone calls, but we cannot draw the same conclusion because the quality of the information is hyper-technical and not plainly decipherable to the lay reader. There is no neatly organized call log, showing incoming and outgoing calls, for instance. Instead, there are strings of numbers and letters over sixty characters long, next to timestamps and what appear to be various types of server and folder data. We cannot discern whether this information indicates that the complainant made or received calls over his prepaid carrier's network (which might undermine the complainant's story); whether the complainant made or received calls over a wi-fi network (which might be consistent with the complainant's story); or whether the complainant used his cellphone for a purpose entirely unrelated to making or receiving calls (like taking or reviewing pictures).
In any event, even if we were to assume that one of these exhibits somehow showed that the disc contained facts that were material to appellant's defensive theory, those facts were never specifically brought to the attention of the trial court. Appellant did not mention such facts in his motion for new trial. He did not even supply the trial court with an expert affidavit explaining the information from the cellphone extraction report. Because appellant did not satisfy his burden of showing that he was prejudiced by the untimely disclosure of the disc, we cannot say that the trial court acted without guiding rules and principles by denying appellant's motion for new trial. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) (“An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal. While the record may be supplemented under the appellate rules if something has been omitted, the supplementation rules cannot be used to create new evidence. Moreover, an appellate court's review of the record itself is generally limited to the evidence before the trial court at the time of the trial court's ruling.”).
RESPONSE TO DISSENT
Like the dissent, we strongly disapprove of the detective's mishandling of the disc, which resulted in a discovery violation. However, a defendant is not automatically entitled to relief upon the mere occurrence of a discovery violation. The defendant must still carry his burden of proving that he was prejudiced.
The dissent would excuse appellant of this burden and shift the burden to the prosecution to prove that the untimely disclosed evidence was not favorable to the defense, but the dissent provides no authority whatsoever for this proposed burden-shifting framework, which is contrary to binding precedent. See Pena v. State, 353 S.W.3d 797, 811 (Tex. Crim. App. 2011) (holding that the defendant has the burden of showing that the prosecution withheld favorable evidence).
The dissent goes on to suggest that the defense had no opportunity to demonstrate prejudice because the prosecution did not supply the defense with a copy of the disc until after the defense had filed its motion for new trial. This position is also untenable. The transcript shows that the disc was admitted for record purposes during the trial itself. The defense had access to the disc at that point.
The defense also had thirty-two days to file its motion for new trial. See Tex. R. App. P. 21.4 (providing that a motion for new trial is due thirty days after the sentence is imposed); Tex. R. App. P. 4.1 (extending the period when, as here, the last day falls on a weekend). The defense did not exhaust that thirty-two day period. Nor did the defense ever file any sort of motion or pleading with the trial court claiming that it had been denied access to the disc. Instead, the defense filed a motion for new trial just four days after the trial was over, and rather than address the contents of the disc, the defense erroneously addressed the events of any unrelated criminal trial (most likely because the motion was recycled from the file of another client). The defense simply made no effort to demonstrate that appellant suffered prejudice.
The defense filed a brief in this appeal nearly ten months after the trial was over. We know that the defense had direct access to the disc during some portion of that ten months because the defense addressed the disc in the brief. The defense cited to individual pages from the extraction report and argued that the evidence on those pages demonstrated that appellant had been prejudiced by the untimely disclosure. We fully addressed those defensive arguments in the previous section of this opinion. But our dissenting colleague, apparently unsatisfied by appellant's brief, believed that more arguments could have been made because she took the extraordinary step of combing through all 7,098 pages of the extraction report in search for other evidence of prejudice.
In a point that was not raised anywhere in the briefing, the dissent argues that there is evidence of prejudice because the extraction report contains copies of text messages, and the dissent believes that the defense could have used these text messages to show that the complainant was experiencing certain financial hardships, which might then support appellant's claim that the complainant owed a creditor a great sum of money. The dissent's argument is unpersuasive because the text messages referred to mundane obligations, like a car note and certain court fees in an unrelated case. There were not any text messages that would substantiate a defensive theory that the complainant was in debt to a potentially violent creditor. To a certain extent, appellant may have benefited by not having this evidence presented to the jury because one of the text messages demonstrated that the complainant added $45 to his account in exchange for five gigabytes of data, which tends to corroborate the complainant's testimony that his cellphone plan was prepaid.
In another point that was never raised by the defense, the dissent argues that there is additional evidence of prejudice because the extraction report reflects that the complainant made contact with two people in the month preceding the offense, and he made a separate contact with a third person on the same morning as the offense. This evidence does not demonstrate prejudice either because the report does not indicate whether these calls were transmitted over a carrier's network or over a wi-fi network. Without knowing that information, no conclusion can be drawn about the complainant's credibility or about the merits of appellant's defensive theory.
The record does not affirmatively reveal how much time during the trial that the defense had to review the disc, or even if the defense was able to carefully peruse the content of the text messages. All we know is that the defense made the sensible judgment under the circumstances to not offer the disc into evidence and then argue in closing statements that the absence of the disc provided grounds for reasonable doubt. The jury was unpersuaded by that argument, and the trial court found no reason for granting a new trial. After considering the issues raised in this appeal, we have no basis for questioning the trial court's judgment because neither the defense nor the dissent has pointed to any evidence from the disc showing that the untimely disclosure resulted in prejudice.
The trial court's judgment is affirmed.
This case represents an abject failure to protect that which due process, Brady, and the Michael Morton Act purport to safeguard in our criminal justice system. Given the violations of these rights, the presence of fundamental errors by the trial court and the prosecution, the multiple remedies designed to correct such violations, and the consequences associated with judicial refusals to recognize such violations and grant remedies therefor, I emphatically dissent.
After Appellant was indicted, he made a formal request pursuant to the Michael Morton Act for (among other things) (1) “any documents [or] papers ․ of ․ any witness the prosecuting attorney may call as a witness,” (2) “any ․ ledgers ․ or other tangible objects involved in the investigation and/or prosecution of [the] offense,” (3) “any evidence which is exculpatory, impeachment, or mitigating document, item or information in the possession, custody, or control of the State, any law enforcement agency, or any State agency that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged,” and (4) permission to inspect “any tangible property of any type seized during any arrest, search, [or] detainment of the defendant.”1 Appellant subsequently filed a supplemental request (again, pursuant to the Michael Morton Act) requesting “inspection and/or the electronic duplication [or] copying” of “cell phone data”, including Complainant's cell phone and the extraction of same performed by Sergeant Arredondo.2
At trial, two distinct versions of events were presented to the jury. Appellant testified he was afraid when Complainant produced the gun and loaded it because (in relevant part) Complainant (1) received (but did not answer) multiple communications on his phone on the day in question, (2) explained that he owed someone some money and that was why he was not answering, and (3) attacked Appellant after he refused to loan Complainant money. Conversely, Complainant testified (1) his phone “wasn't functioning”, (2) that he could not make or receive phone calls or texts because he “didn't have any minutes on it”, and (3) that he had been without any minutes on his phone for two or three months. This testimony was invoked by the State during its closing argument.
The jury was tasked with determining which witness was more credible: either Complainant received communications via his cell phone on the day in question or he did not. Complainant testified at trial he still had the cell phone at his home and that, despite not having any minutes on his phone, he could use wi-fi when it was available and that he had used Facebook Messenger to make and receive phone calls. The State performed a partial cell phone extraction of Complainant's phone but failed to secure it. Even though it was properly requested by Appellant's counsel, it was unavailable to either the State or Appellant until the third day of trial. During the hearing on the motion in limine, the trial court stated, “Well ․ if there was a cell phone dump and it doesn't exist or it's gone and the State had it, well, you know, I mean, that's – that's – they're going to have to ․ suffer whatever the end result is.”3
The State produced Investigator Jessica Johnson at trial to testify that she was the lead investigator, that Detective Sergeant Shane Arredondo was “the one that had the training and the connections with Baytown Police Department who had the software” to perform extractions of data from cell phones, and that she personally asked him to perform such an extraction on Complainant's phone. Investigator Johnson specifically testified that she wanted “to see if there were any incoming calls [to Complainant] as [Appellant] had stated” and that it took Sergeant Arredondo a little over a month to complete the extraction, to place it on a disc, and to return it (and Complainant's cell phone) to her. Investigator Johnson testified that “normally”, the disc “would have been submitted into evidence.”
Despite not having the disc or the information on it available to her at the time of trial, Investigator Johnson testified that she “did not find anything relevant” in the extraction. When asked by the State if her report said “there's nothing on there [the CD]”, Investigator Johnson answered, “Correct”. When asked by Appellant's counsel whether she could testify “beyond a reasonable doubt, about the contents of the phone,” she replied, “Not the full contents, no[.]” When asked specifically whether she remembered there was nothing relevant on the disc or whether she did not remember what was on it, she testified, “No, going off of memory, there was nothing relevant on it.”
Investigator Johnson also testified that prior to leaving the employ of the Chambers County Sheriff's Department, she “went through everything that was ․ in or on [her] desk. Each file was packaged individually ․ the hard copy of the case file was labelled and submitted into evidence.” She then put everything in an envelope and returned it to the sheriff's office. Despite Appellant's requests under the Michael Morton Act, Investigator Johnson did not examine the envelope she provided or the files therein prior to trial; there is no evidence in the record that she even attempted or requested permission to do so.
After Investigator Johnson testified, she found the disc (whether it was a copy or the original is unclear from the record) containing the cell phone extraction “stacked up in the stuff” in her garage. When she was originally subpoenaed, she (according to the State) “looked through a couple of boxes” but “couldn't remember because she gave the stuff over to CID [the Chambers County Sheriff's Office's Criminal Investigations Division] and turned all her stuff in over there.” According to the Chambers County Sheriff's Office evidence custodian, cell phone extraction data would only come within her control “depend[ing] on if they [officers] put it in evidence or put it with the case file.” In this case, the custodian of records testified she “never had the cell phone data”4 (thereby appearing to contradict Investigator Johnson's testimony). Upon being presented with the disc, Appellant's counsel told the trial court that he could not read the information thereon and that it needed to be reviewed by “somebody that understands all this much better than me”; he even specifically mentioned the expert he ultimately hired. Appellant's clear request for relief was denied.
Appellant also moved for a mistrial, alleged prosecutorial misconduct, and informed the court that the State's conduct violated the twice-issued subpoenas and the Michael Morton Act. The State's counsel initially contended that, “it just corroborates our witness' testimony [and] that's all it does”5 and “[i]t [the disc] just shows calls made or not made.”6 Appellant's requests for a mistrial and a spoliation instruction were also denied.
The trial court declared: “I'm going to let Detective Arredondo go through it and see if he can find something that supports [Appellant's] position, and if he does, I'm going to let it in.”7 Despite Appellant's counsel's reluctance to rely solely upon the State's expert, the trial court seemed to believe that a reasonable approximation of truth could be reached via Sergeant Arredondo's representations 8 alone and denied Appellant's request to consult an independent expert. Appellant's counsel also specifically complained that the trial court was denying Appellant an effective remedy.9 After he examined the data on the disc, Sergeant Arredondo conceded that he believed the extraction he performed and the disc he created did not even have Complainant's call log 10 despite (1) the fact that the calls were the precise piece of information Investigator Johnson sought and (2) the State's express representation concerning the contents of the disc.11
Presumably acknowledging that it was too long to read or even peruse during trial, the trial court (while characterizing its ruling as “very fair”)12 then allowed Appellant to enter the disc with 7,098 pages as an exhibit for us to review on appeal.13 The trial court even told Appellant's counsel that if the disc was helpful, he would not be at any disadvantage.14 No other curative steps (e.g., an instruction to disregard) were even attempted by the trial court. During closing argument, the State specifically argued to the jury, “We know it wasn't people calling ․ [Complainant] testified that he had no minutes left.”15
After Appellant was convicted, he moved for a new trial.16 There, he alleged that the State's:
[f]ailure to provide the Defendant with evidence of a data extraction of the Complainant's cell phone until the 3rd day of trial, February 27, 2019, is in violation of the constitutional and statutory rights of the Defendant under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Texas Constitution, and Texas Code of Criminal Procedure 39.14, and the ‘Michael Morton’ Act.17
Appellant specifically recounted (in a verified motion) how he had served a request for discovery and inspection of evidence and recited the State's representations that (1) the State “did not have a copy of the data extracted from [Complainant's] cell phone”, (2) “there's nothing on it [the disc]”, and (3) the disc had been lost. According to Appellant, the State subsequently sent his counsel an email stating Sergeant Arredondo “downloaded the phone onto a disc”, turned the disc over to Investigator Johnson, and believed “there was not anything on the download that was relevant to the offense.”
Appellant's motion for new trial was denied by operation of law and Appellant timely appealed. Appellant's brief states (without controverting argument by the State) that the information regarding the cell phone records was not received by Appellant's counsel until approximately eight months after the deadline for the motion for new trial and seven months after Appellant appealed the judgment.
II. Standards of Review
Generally, we are obliged to review the denial of a motion for mistrial for an abuse of discretion and to uphold the trial court's ruling if it was within the zone of reasonable disagreement. See Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Such review typically balances three factors: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of conviction or the punishment assessed absent the misconduct. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc).
These standards typically do not apply to analyses of alleged Brady violations. See generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Instead, “[t]here are three essential components of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” Ex parte Temple, No. WR-78,545-02, 2016 WL 6903758, at *2 (Tex. Crim. App. Nov. 23, 2016) (not designated for publication) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). “The Supreme Court has since held that the duty to disclose such evidence is applicable even though there has been no request by the accused[.]” Id. (citing United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)); see also Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”). The remedy for a Brady violation is a new trial. Ex parte Miles, 359 S.W.3d 647, 664 (Tex. Crim. App. 2012).
Additionally, the conventional standards for a mistrial do not apply to violations under the Michael Morton Act. “The Michael Morton Act is essentially a state statutory extension of Brady, in which the United States Supreme Court held ‘that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ ” Hallman v. State, 603 S.W.3d 178, 189 (Tex. App.—Fort Worth 2020, pet. filed) (observing that society wins not only when the guilty are convicted but also when criminal trials are fair and that our judicial system suffers when any accused is treated unfairly) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). As a state statutory extension of Brady, the baseline queries under the Michael Morton Act are: (1) did the State fail to disclose evidence; (2) was the withheld evidence favorable to the defendant; and (3) was the evidence material, i.e., is there a reasonable probability that, had the evidence been disclosed, the trial's outcome would have been different. See Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011).
Finally, we review cases for fundamental error even when it is unassigned. See Carriera v. State, 663 S.W.2d 1, 1 & n.1 (Tex. Crim. App. 1983) (en banc) (noting unassigned fundamental error concerning prosecutorial misconduct and reversing defendant's conviction); McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957) (per curiam) (holding that the supreme court had power to revise a lower-court judgment for unassigned fundamental error and recognizing power of intermediate appellate courts to do same). Fundamental error is an error “calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.’ ” Ross v. State, 487 S.W.2d 744, 745 (Tex. Crim. App. 1972). As an intermediate appellate court, we are tasked with the duty to examine the record to discover fundamental errors, even without briefs. See Fed. Deposit Ins. Corp. v. Roberson, 603 S.W.2d 278, 279 (Tex. App.—Houston [14th Dist.] 1980, no writ) (citing Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 982 (1947)); see also Bittle v. Serv. Mut. Ins. Co. of Tex., 103 S.W.2d 221, 221 (Tex. App.—Eastland 1937, no writ) (even without briefs, “[t]he approved practice is either to dismiss the appeal, or to examine the record to discover fundamental errors which may exist, and to affirm or reverse the case accordingly as such examination may require.”) (citing Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811 ( [Comm'n Op.] 1929)). “Fundamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas.” Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 n.6 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (emphasis added) (quoting Pirtle v. Gregory, 629 S.W.2d 919, 919-20 (Tex. 1982) (per curiam)).
Appellant made an unwritten and unsworn request for continuance, properly requested a mistrial, and (even without an analysis of the merits) clearly alleged the State violated Brady and the Michael Morton Act; the sufficiency of his allegation is evidenced by the trial court's subjective awareness of the State's failures and the import thereof.18 I would therefore join the Fort Worth Court of Appeals and hold that when (as here) an oral motion for continuance in a criminal case is made and denied during trial on the same constitutional or statutory basis as a motion for mistrial, a defendant does not need to file a written, sworn motion for continuance in order to preserve his Article 39.14-based denial-of-mistrial complaint for our review. See Hallman, 603 S.W.3d at 189 (citing Branum v. State, 535 S.W.3d 217, 226-27 (Tex. App.—Fort Worth 2017, no pet.)). It is beyond dispute that, “The law does not require a futile act.” CA Partners v. Spears, 274 S.W.3d 51, 68 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987) (stating the equitable maxim that “a court should not require the doing of a useless thing”)); see also Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (“The law does not require the doing of a futile act.”), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (en banc) (citing Kinnamon v. State, 791 S.W.2d 84 (Tex. Crim. App. 1990) (en banc)). Filing a written request for continuance based on violations of due process and statutory rights would be a futile act when those same violations are both (1) known to the trial court and (2) the basis for a separate written motion on which a mistrial is denied.
“There are three essential components of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” Ex parte Temple, 2016 WL 6903758, at *2 (citing Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936). Here, the State's concession that there were 7,098 pages of previously unproduced evidence during trial (but after Investigator Johnson's testimony) deprived Appellant of the opportunity to prove the evidence was favorable under Brady. I conclude this deprivation constitutes an independent due process violation insofar as the State deprived Appellant of the opportunity to be heard at a meaningful time in a meaningful manner concerning the State's alleged Brady violation. See generally Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)); see also Tex. Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004); City of Houston v. Carlson, 393 S.W.3d 350, 357 (Tex. App.—Houston [14th Dist.] 2012, no pet.); cf. Ward v. State, 740 S.W.2d 794, 800 (Tex. Crim. App. 1987) (en banc) (citing Armstrong, 380 U.S. at 552, 85 S.Ct. 1187). I also conclude the State unjustifiably deprived Appellant of a fair and impartial trial via conduct that undermines confidence in the jury's verdict (see Kyles, 514 U.S. at 434, 115 S.Ct. 1555), thereby evidencing extreme prejudice.
“When evaluating whether the materiality standard is satisfied, the strength of the exculpatory evidence is balanced against the evidence supporting conviction.” Pena, 353 S.W.3d at 812 (citing Hampton v. State, 86 S.W.3d 603, 613 (Tex. Crim. App. 2002)). “The suppressed evidence is considered collectively, rather than item-by-item.” Id. (citing Kyles, 514 U.S. at 436, 115 S.Ct. 1555). “[I]t is important to consider how disclosure could have affected defense preparation, with an awareness of the difficulty of post-trial reconstruction.” Id. (citing United States v. Bagley, 473 U.S. 667, 683, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Thus, “[s]ometimes, what appears to be a relatively inconsequential piece of potentially exculpatory evidence may take on added significance in light of other evidence at trial.” Id. (quoting Hampton, 86 S.W.3d at 613). At the time Appellant requested both a mistrial and a new trial, he was unable to prove the evidence was material, favorable, or prejudicial because neither he nor anyone else appear to have had relevant knowledge concerning the data on the disc. Therefore, it would appear the State's misconduct prevented Appellant from proving his entitlement to relief under a strict appellate application of Brady.
C. Michael Morton Act
“In Texas, criminal defendants do not have a general right to discover evidence in the State's possession, but they have been granted limited discovery by article 39.14 of the Texas Code of Criminal Procedure.” Lindsey v. State, 582 S.W.3d 810, 819 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 39.14; Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993) (en banc)). Article 39.14 (“the Michael Morton Act”) “requires the State, upon request, to disclose to the defendant discoverable items that ‘constitute or contain evidence material to any matter involved in the action’ subject to certain statutory limitations.” Id. (citing Tex. Code Crim. Proc. Ann. art. 39.14(a); Glover v. State, 496 S.W.3d 812, 815 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd)). “If the State has not received a request, it only has an affirmative duty to disclose ‘any exculpatory, impeachment, or mitigating document, item, or information’ in its possession, custody, or control ‘that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.’ ” Id. at 819-20 (citing Tex. Code Crim. Proc. Ann. art. 39.14(h); Glover, 496 S.W.3d at 815). Here, such a request was made twice. Cf. Pena, 353 S.W.3d at 810 (“The State failed to disclose the audio portion when the videotape evidence was initially requested by defense counsel and again failed to disclose it after a second inquiry by the defense that addressed the lack of sound on the copy previously provided.”).
“The Legislature passed the Michael Morton Act to make criminal prosecutions more transparent by ensuring that criminal defendants can review many of the State's discovery materials above and beyond those that are purely exculpatory.” Hallman, 603 S.W.3d at 189 (citing Love v. State, 600 S.W.3d 460, 464 (Tex. App.—Fort Worth 2020, pet. filed)); see also Gerald S. Reamey, The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, or Not, 48 Tex. Tech L. Rev. 893, 897 (2016) (“Prior to 2014, Texas discovery law ․ inhibited the ability of the criminally accused to obtain useful material from the [S]tate in a timely fashion.”). “That is, the Act's purpose is to reduce the risk of wrongful conviction, which is high when criminal defendants ‘are systematically denied information about the [S]tate's case until it is revealed at trial.’ ” Hallman, 603 S.W.3d at 189 (emphasis added) (citing Reamey, 48 Tex. Tech. L. Rev. at 899-900 (explaining that after serving almost 25 years of a life sentence, Morton was exonerated by evidence that had previously been undisclosed due to prosecutorial misconduct)). These purposes highlight the error of the State's unquestioning reliance upon police officers' representations that 7,098 pages of undisclosed and unexamined data contained “nothing relevant” and nothing “relevant to the offense.”
Given my agreement with the Fort Worth Court of Appeals' recent jurisprudence concerning the Michael Morton Act (in Hallman), I quote it liberally:
The recent changes to Article 39.14 create a general, continuous duty by the State to disclose before, during, or after trial any discovery evidence that tends to negate the defendant's guilt or to reduce the punishment he could receive. Ex parte Martinez, 560 S.W.3d 681, 702 (Tex. App.—San Antonio 2018, pet. ref'd); Cynthia E. Hujar Orr & Robert G. Rodery, The Michael Morton Act: Minimizing Prosecutorial Misconduct, 46 St. Mary's L.J. 407, 414 (2015) (stating that “for the first time, the prosecution is under a statutory duty to continually disclose exculpatory evidence”).
* * *
By instituting what amounts to a legislative “Open File” policy in advance of trial, the Michael Morton Act sets out a methodology to enhance the fairness of the trial process and to prevent wrongful convictions by giving the defense access to information the existence of which it might otherwise have to guess. See generally Ex parte Temple, No. WR-78,545-02, 2016 WL 6903758, at *3 n.20 (Tex. Crim. App. Nov. 23, 2016) (not designated for publication) (recognizing that “[t]he Michael Morton Act created a general, ongoing discovery duty of the State to disclose before, during, or after trial any evidence tending to negate the guilt of the defendant or reduce the punishment the defendant could receive”); Young v. State, 591 S.W.3d 579, 598 (Tex. App.—Austin 2019, pet. ref'd) (“When the [L]egislature passed the Michael Morton Act, it amended article 39.14 of the Code of Criminal Procedure to expand the availability and scope of discovery that must be produced by the State.”); Murray v. State, No. 08-16-00185-CR, 2018 WL 1663882, at *4 (Tex. App.—El Paso Apr. 6, 2018, pet. ref'd) (mem. op., not designated for publication) (“The Michael Morton Act changed Texas law related to discovery in criminal cases in order to prevent wrongful convictions by ensuring defendants have access to the evidence in the State's possession so they may prepare a defense.”). But see Agurs, 427 U.S. at 111, 96 S. Ct. at 2401 (rejecting suggestion that prosecutor has a constitutional duty to deliver his entire file to defense counsel).
“Favorable evidence” includes both exculpatory evidence and impeachment evidence. [Ex parte] Chaney, 563 S.W.3d [239, 266 (Tex. Crim. App. 2018) ]; see Strickler, 527 U.S. at 280, 119 S. Ct. at 1948 (“We have since held ․ that the [Brady] duty encompasses impeachment evidence as well as exculpatory evidence.”); see also Kyles, 514 U.S. at 437, 115 S.Ct. 1555 (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.”). Impeachment evidence is evidence that “disputes, disparages, denies, or contradicts other evidence.” Chaney, 563 S.W.3d at 266. But materiality, a legal question that we review de novo, remains the linchpin of both Article 39.14(a) and Brady. See Tex. Code Crim. Proc. Ann. art. 39.14(a); Chaney, 563 S.W.3d at 264; see also Strickler, 527 U.S. at 282, 119 S. Ct. at 1948.
“To establish that requested evidence is material, a defendant must provide more than a possibility that it would help the defense or affect the trial.” Branum, 535 S.W.3d at 224. That is, to be considered material and subject to mandatory disclosure under Article 39.14(a), such evidence must be indispensable to the State's case or must provide a reasonable probability that its production would result in a different outcome. Id. at 225; see Ehrke v. State, 459 S.W.3d 606, 611 (Tex. Crim. App. 2015) (“Evidence is material if its omission would create ‘a reasonable doubt that did not otherwise exist․” (quoting Agurs, 427 U.S. at 112, 96 S. Ct. at 2402)); see also Chaney, 563 S.W.3d at 263-64, 266 (stating that false evidence is material when there is a “reasonable likelihood” that it would have affected the jury's judgment and that suppressed evidence is material if there is a reasonable probability that the trial's result would have been different if the suppressed evidence had been disclosed to the defense). “A reasonable probability is one sufficient to undermine confidence in the outcome of the trial.” Chaney, 563 S.W.3d at 266; see Wearry v. Cain, ––– U.S. ––––, 136 S. Ct. 1002, 1006, 194 L.Ed.2d 78 (2016) (stating, under Brady, that the defendant need not show that he “more likely than not” would have been acquitted had the new evidence been admitted but rather “only that the new evidence is sufficient to ‘undermine confidence’ in the verdict”).
Hallman, 603 S.W.3d at 192-93.
As an extension and expansion of Brady, the Michael Morton Act incorporates the holding that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 191 (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). From this unambiguous baseline, “[f]avorable evidence is that which, if disclosed and used effectively, ‘may make the difference between conviction and acquittal.’ ” Pena, 353 S.W.3d at 811 (quoting Bagley, 473 U.S. at 676, 105 S.Ct. 3375 (emphasis in original)); see also Ehrke, 459 S.W.3d at 611 (“Evidence is material if its omission would create ‘a reasonable doubt that did not otherwise exist ․’ ”) (quoting Agurs, 427 U.S. at 112, 96 S.Ct. 2392). Based on the State's failures, Appellant was deprived of the opportunity to timely prove whether the information on the phone or on the disc would have made any difference; Appellant even informed the trial court of said inability.19 While I acknowledge that it is typically the criminal defendant's burden to establish favorability under Brady, I would hold the burden shifts to the State (to prove evidence is not favorable) where its violations of statutory or constitutional law precludes defendants from meeting their burden to establish materiality.
Additionally, the Michael Morton Act (unlike Brady) also applies when the evidence at issue is “indispensable to the State's case”. Carrera v. State, 554 S.W.3d 800, 802 (Tex. App.—Waco 2018, no pet.) (citing Branum, 535 S.W.3d at 225); see also Hallman, 603 S.W.3d at 193; Mundo v. State, No. 08-19-00077-CR, 2020 WL 5105210, at *5 (Tex. App.—El Paso Aug. 31, 2020, no pet. h.) (not designated for publication); In re State, ––– S.W.3d ––––, ––––, 2020 WL 5105215, at *3 (Tex. App.—El Paso Aug. 31, 2020, orig. proceeding); Taylor v. State, No. 06-19-00179-CR, 2020 WL 4643962, at *10 (Tex. App.—Texarkana Aug. 12, 2020, no pet. h.) (mem. op., not designated for publication); and Delafuente v. State, No. 10-16-00376-CR, 2019 WL 5446028, at *7 (Tex. App.—Waco Oct. 23, 2019, pet. ref'd) (mem. op., not designated for publication). Here, Investigator Johnson (in response to questioning from the State) corroborated Complainant's account concerning the absence of communications via Complainant's cell phone on the day in question by (1) implying she had reviewed an unproduced cell phone extraction, and (2) testifying she “did not find anything relevant” therein. The State relied upon Complainant's testimony during closing and used it (and Johnson's corroborating testimony) to discredit Appellant's version of events and to prove Complainant testified truthfully. Given the State's reliance on credibility, discrediting Appellant, and the absence of communications, the withheld data was indispensable to the State's case.
The impact of the State's presentment becomes clear when viewed through the lens of Brady, under which the duty to disclose arises when prosecutors or other members of the prosecuting team know of the investigation or have access to relevant information. See Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997) (en banc); Drew v. State, 76 S.W.3d 436, 447-48 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). As an investigator (who characterized herself as “lead investigator”), Investigator Johnson was a member of the prosecution team. See Ex parte Adams, 768 S.W.2d 281, 292 (Tex. Crim. App. 1989) (en banc) (prosecution team “includes both investigative and prosecutorial personnel”) (quoting United States v. Antone, 603 F.2d 566, 569 (5th Cir. 1979) (citing Schneider v. Estelle, 552 F.2d 593, 595 (5th Cir. 1977))); see also Smith v. State of Florida, 410 F.2d 1349, 1351 (5th Cir. 1969). She also had access to the information at issue (i.e., the phone and the disc) and testified on behalf of the prosecution. Relatedly, Sergeant Arredondo was the investigator who performed the extraction, attended trial, and explained pieces of the unproduced report (and the methodology used to create it) to the trial court. Therefore, the prosecution was duty-bound under both Brady and the Michael Morton Act to learn about the contents of the phone, the extraction, and the disc from at least one of its investigating officers. See Kyles, 514 U.S. at 437-38, 115 S.Ct. 1555 (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.”) (internal citations omitted); see also Ex parte Castellano, 863 S.W.2d 476, 480-81 (Tex. Crim. App. 1993) (en banc) (“[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor's office is an entity and as such it is the spokesman for the Government.”) (citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)); Pena, 353 S.W.3d at 810 (“The audio portion of the videotape was (or at least should have been) known to the State. Even if the prosecutor was not personally aware of the audio recording, the State is not relieved of its duty to disclose because ‘the State’ includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case․ The videotape was created and preserved by law enforcement officers, agents of the State, who then maintained exclusive control over the evidence.”).
The majority's conclusion that we should refrain from granting any relief renders the Legislature's enactment of the Michael Morton Act entirely toothless. There is almost no meaningful value to a statute which requires the State to disclose impeachment or exculpatory evidence if the State's consistent failures to comply prevent Appellant from having access to information that could reveal materiality under Brady or the Michael Morton Act. The majority's nullification of a state law designed to bring (at least some) balance to our criminal justice system contravenes critical interests. See Holloway v. State, 780 S.W.2d 787, 793 (Tex. Crim. App. 1989) (en banc) (“Parity between participants is critical to prevent unfair and unjust outcomes that would be tainted by one side's superiority. The criminal defendant is less capable of coping with ‘the system’ than his or her governmental opponent.”) (citing Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)).
Because the Michael Morton Act is a state extension of Brady, it is similarly designed to “reduce the risk of wrongful conviction, which is high when criminal defendants ‘are systematically denied information about the [S]tate's case until it is revealed at trial.’ ” Hallman, 603 S.W.3d at 189. Therefore, I would hold that the Michael Morton Act's extension of Brady includes the availability of relief to those who (like Appellant) have suffered governmental deprivations of their abilities to establish Brady violations through no fault of their own; otherwise, injustices like the one at bar present constitutional and statutory wrongs without any available remedy.
“A mistrial is a device used to halt trial proceedings when an error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Having discerned Appellant's apparent inability to prove materiality under Brady or the Michael Morton Act, I conclude it would be inequitable and unjust to ignore the traditional test for granting a mistrial in Texas's criminal courts given that a mistrial was clearly requested when the State's misconduct became apparent. Therefore, we should balance (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of conviction or the punishment assessed absent the misconduct. Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 259.
First, the severity of the misconduct (regardless of intent) is extremely high. Specifically, the State has failed to secure a crucial piece of evidence indispensable to both its case and Appellant's case despite an ongoing statutory duty to do so. Additionally, the State, Sergeant Arredondo, and Investigator Johnson each conveyed their respective beliefs to the trial court that there was nothing relevant to Appellant's defense in the data (despite the prosecutor's inability to examine this data prior to his factually incorrect representation to the court).
Second, the only measures taken by the trial court were (1) preventing the State from using the data and (2) admitting the disc into evidence for appellate review; neither of these measures could even begin to cure the State's misconduct or the palpable prejudice presented via Investigator Johnson's testimony based on previously undisclosed evidence. The trial court (despite recognizing a violation of law) did not grant a continuance and did not instruct the jury to disregard Investigator Johnson's testimony concerning the data on the disc. Instead, the trial court offered Appellant the assurances of Sergeant Arredondo, the same officer who failed to (1) notice he failed to download (at least) the one piece of information Investigator Johnson wanted despite knowing such failures were possible, (2) perform any other type of forensic examination despite knowing his methods were incomplete, and (3) preserve an original copy of the phone's data so that it could be analyzed using any other method.20
Third, there can be zero certainty of conviction absent the State's misconduct precisely because it appears no one ever actually examined the data on (or not on) the disc for relevant evidence. This absence of certainty is magnified by the actual data, which appears to impeach Complainant and Investigator Johnson. See generally section V, infra (“Fundamental Error”).
Like in Hallman, “[c]redibility was the key to this case”. 603 S.W.3d at 183. The State's misconduct violated constitutional protections, duties, oaths, and statutes, particularly when viewed in light of its insistence on proceeding to verdict rather than investigating data it did not even receive until after Investigator Johnson testified. Even then, it is readily apparent that the State's prosecutors either (1) failed to review the 7,098 pages or (2) knew the contents thereof and did nothing; neither is permissible.
The majority finds assurances that the trial court “could have reasonably accepted [Investigator Johnson's] explanations and found that the untimely disclosure had been the result of negligence, not bad faith.” This whitewashing of State-inflicted harm via an examination of the trial court's interpretation of the State's mens rea is wholly irrelevant to all questions presented (except arguably spoliation, which the majority does not address) and evidences a fundamental misunderstanding of designed protections against this precise harm. See, e.g., Kyles, 514 U.S. at 437-38, 115 S.Ct. 1555; Giglio, 405 U.S. at 154, 92 S.Ct. 763; Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and Castellano, 863 S.W.2d at 480-81.
V. Fundamental error
A. The nature of fundamental error
This case must be reversed because Appellant's conviction is predicated upon multiple fundamental errors. See generally Robinson v. State, 553 S.W.2d 371, 374 (Tex. Crim. App. 1977) (citing Whitson v. State, 495 S.W.2d 944 (Tex. Crim. App. 1973); Mendoza v. State, 491 S.W.2d 888 (Tex. Crim. App. 1973); and Fennell v. State, 424 S.W.2d 631 (Tex. Crim. App. 1968)). “Fundamental error is an error ‘calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.’ ” Robinson, 553 S.W.2d at 374 (quoting Ross, 487 S.W.2d at 745); see also Mendoza v. State, 577 S.W.2d 240, 241 (Tex. Crim. App. [Panel Op.] 1979); Owens v. State, 385 S.W.2d 246, 247 (Tex. Crim. App. 1964); Blake v. State, 379 S.W.2d 899, 900 (Tex. Crim. App. 1964); compare Fundamental Error, Black's Law Dictionary (11th ed. 2019) (“fundamental error [- see] plain error under ERROR (2)”) with Error, Black's Law Dictionary (11th ed. 2019) (“plain error [-] An error that is so obvious and prejudicial that an appellate court should address it despite the parties' failure to raise a proper objection. A plain error is often said to be so obvious and substantial that failure to correct it would infringe a party's due process rights and damage the integrity of the judicial process. ․ Also termed fundamental error.”). The nature and impact of such errors has been recognized and rectified by Texas's appellate courts since the early days of the Republic. See Jones v. Black, 1 Tex. 527, 530 (1846) (“[I]f the foundation of the action has manifestly failed, we can not, without shocking the common sense of justice, allow a recovery to stand.”) (quoting Palmer v. Lorillard, 16 Johns. 348, 348 (N.Y. 1819) (available at 1819 WL 1790)); see also Ledbetter v. State, 26 Tex. App. 22, 35, 9 S.W. 60 (1888); Lacey v. State, 22 Tex. App. 657, 659-60, 3 S.W. 343 (1887). Comparable remedies for comparable errors are recognized throughout the country. See In re J.F.C., 96 S.W.3d 256, 287 n.1 (Tex. 2002) (Hankinson, J., dissenting) (collecting cases from 34 states and the District of Columbia).
B. The public-interest-based standard
Here, the absence of an error affecting jurisdiction means we analyze fundamental error using the public-interest-based standard. Pirtle, 629 S.W.2d at 919-20; Britton, 95 S.W.3d at 681 n.6. After an appellate court determines that it will consider the unpreserved error, it conducts the next two steps of appellate review and “determines whether an error in fact occurred, and whether the error is harmful.” In re J.F.C., 96 S.W.3d at 292 (Hankinson, J., dissenting) (citing W. Wendell Hall, Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045, 1056 (1993); In re C.O.S., 988 S.W.2d 760, 767 (Tex. 1999) (concluding that failure to give statutory admonishments, while fundamental error, was not harmful error requiring reversal); and State v. Santana, 444 S.W.2d 614, 615 (Tex. 1969) (holding that jury charge in juvenile case warranted fundamental-error review and analyzing whether charge violated due process), vacated on other grounds, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970)). Such error is rare, and “implicated only when our most significant state public interests are at stake.” Id. To qualify as “public-interest-based” fundamental error, the error at issue must be fairly “characterized the type of public interest that must be at stake as one ‘declared in the statutes or Constitution of this state.’ ” Id. (citing Ramsey, 205 S.W.2d at 983); see also Santana, 444 S.W.2d at 615 (noting “the constitutional importance of this case to the public generally”). Evidence of such public interest relative to the Michael Morton Act is not hard to find.
C. Statutory and constitutional declarations of public interests
“Official misconduct has been a factor in more than half of the nationally reported exonerations since 1989 — nearly four score of which have occurred in Texas.” Hillman v. Nueces Cty., 579 S.W.3d 354, 365 (Tex. 2019) (Guzman, J., concurring). “Concealment of exculpatory evidence undermines the integrity of our criminal justice system, which is of vital importance to every one of us: ‘Society wins not only when the guilty are convicted but when criminal trials are fair ․ the administration of justice suffers when any accused is treated unfairly.’ ” Id. (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). Justice Guzman proceeds to remind us that:
The tragic story of Michael Morton and Debra Baker compelled the Legislature to take affirmative steps to prevent wrongful convictions due to prosecutorial misconduct. In the legislative session following Morton's exoneration, the Texas Legislature unanimously passed the Michael Morton Act. The Morton Act extends, but has not altered, prosecutors' longstanding obligation under Brady v. Maryland to disclose exculpatory evidence in the prosecution's possession. Before the Morton Act, prosecutors had a constitutional duty under Brady to disclose all evidence that might exonerate the defendant, but the defense had very limited pretrial discovery rights. Under the Morton Act, if the defense requests discovery, the prosecution is under a statutory duty to continually disclose exculpatory, mitigating, or impeachment evidence. The Act is an important legislative step towards ensuring Brady compliance and bolstering the integrity of the criminal justice system.
Id. (internal footnotes omitted).
Beyond the Michael Morton Act, I also conclude a separate (but related) public interest at stake is declared in the Texas Constitution. Specifically, Article I, section 19 of the Texas Constitution guarantees that:
No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
Tex. Const. art. I, § 19; see also Tex. Code Crim. Proc. Ann. art. 1.04 (same). Appellant was deprived of his liberty and privileges in a manner that is expressly contrary to a unanimously-passed statute designed to protect against this precise wrongdoing. Compare Senate Comm. on Criminal Justice, Bill Analysis, Tex. H.B. 510, 84th Leg., R.S. (2015) (“The 83rd Legislature's Michael Morton Act comprehensively overhauled the discovery process for Texas criminal cases. The Act reformed the Texas criminal discovery statute in the Code of Criminal Procedure to ensure more open and transparent discovery in all criminal cases and to improve the reliability of criminal convictions.”) with Duggan v. State, 778 S.W.2d 465, 469 (Tex. Crim. App. 1989) (en banc) (“[F]alse evidence, left uncorrected, can mislead the factfinder, thereby misdirecting the due course of law and diverting due process from its intended progression toward a just and fair trial.”); see also Tex. Code Crim Proc. Ann. art. 1.03 (4)-(5) (“This Code ․ seeks ․ [t]o bring to the investigation of each offense on the trial all the evidence tending to produce conviction or acquittal” [and] “[t]o insure a fair and impartial trial[.]”). Cf. Tex. Civ. Prac. & Rem. Code Ann. ch. 103 (entitled “Compensation to Persons Wrongfully Imprisoned”).
Given the guarantees of the Texas Constitution, the nature of the Michael Morton Act, and the repeated wrongs the act was unanimously approved to prevent (then remedy), the public interests at issue herein are sufficiently “declared in the statutes or Constitution of this state” and thereby warrant fundamental error review. Ramsey, 205 S.W.2d at 983; Roberson, 603 S.W.2d at 279. Without rectification, the majority's position ignores government misconduct or gross negligence, condones comparable conduct, and fails to convey to Chambers County (and anyone else who is listening) that their conduct and procedures are unacceptable under the laws of this state, prosecutorial ethics, and constitutional requirements. Duggan, 778 S.W.2d at 468 (“The duty to correct known false evidence is not only a prosecutorial ethic, but a constitutional requirement.”) (citing Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); and Mooney, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935)).
D. Application of law to the facts
The record establishes that the trial court knew what the Michael Morton Act required and that the State had violated it;21 the trial court even understood the importance of the evidence potentially present on the disc.22 Nonetheless, the trial court permitted the prosecution to proceed despite Appellant's request to consult an expert. The trial court's decisions disregarded Appellant's rights to (inter alia) impeachment evidence, exculpatory evidence, governmental compliance with Brady, governmental compliance with the Michael Morton Act, the opportunity to make his case for a spoliation instruction, and meaningfully confront a corroborating witness. Instead of complying with Appellant's timely and repeated requests for information, the State presented him with 7,098 pages of data after Investigator Johnson testified. Instead of granting a mistrial (or even a continuance), the trial court forced Appellant to rely upon analyses from Sergeant Arredondo on behalf of the State. Viewed independently or collectively, these trial court decisions were calculated to injure Appellant's rights and to deprive him of a fair and impartial trial; they also succeeded. These deprivations strike at the very heart of our adversarial system.
1. The trial court's rulings undermine the integrity of our adversarial criminal justice system
“[W]e have placed our confidence in the adversary system, entrusting to it the primary responsibility for developing relevant facts on which a determination of guilt or innocence can be made.” United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (citing United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); and Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (Frankfurter, J., dissenting)). This system “is central to the administration of criminal justice.” Holloway, 780 S.W.2d at 793. “Due process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function.” Morrison v. State, 845 S.W.2d 882, 884 (Tex. Crim. App. 1992) (en banc). In Nixon, Chief Justice Burger made clear that:
The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.
Nixon, 418 U.S. at 709, 94 S.Ct. 3090.
Forcing Appellant to rely on Sergeant Arredondo to decipher his own incomplete investigation and to analyze evidence with a sufficiently informed definition of the terms “relevance” or “materiality” cannot be reconciled with any guiding principles concerning our adversary system and was calculated to injure Appellant's rights while denying him a fair and impartial trial. Cf. McWilliams v. Dunn, ––– U.S. ––––, 137 S. Ct. 1790, 1803, 198 L.Ed.2d 341 (2017) (Alito, J., dissenting). (“While it is possible for a neutral expert to provide these services, in our adversary system they are customarily performed by an expert working exclusively for one of the parties.”) (emphasis added). The egregiousness of being forced to rely upon Sergeant Arredondo is further evidenced by his contention (to the State) that there was nothing “relevant to the offense” in the data; based thereon, it is clear he was not even analyzing the information (if at all) for evidence relevant to Appellant's defense.
Continuing to add to these nesting fundamental errors, the trial court knew Appellant did not have sufficient time to review the 7,098 pages. First, Appellant's counsel told the court:
I believe they stated in the beginning that the total amount of data that we pulled off of here is 7,000 pages. I don't think that I can effectively [analyze] that data, and I don't think it's an effective remedy to say “Well, if you want to appeal it if it doesn't go your way, then, yeah, it will become part of the record.”
Second, no reasonable jurist could expect any non-expert to review and understand 7,098 pages of cell phone extraction data or the relevance of same in less than 24 hours. Therefore, the trial court's actions fundamentally undermine the integrity of the proceeding.
2. The trial court's errors deprived Appellant of the opportunity to prove his entitlement to a spoliation instruction
These fundamental errors are further compounded by Appellant's inability to prove his entitlement to his requested spoliation instruction. Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usu[ally] a document.” Spoliation, Black's Law Dictionary (11th ed. 2019) (emphasis added); see also Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 25 (Tex. 2014) (spoliation can apply to a party's “failure to produce relevant evidence”). At trial, Appellant argued that because the State's destruction or concealment of evidence irreparably prevented him from meaningfully presenting his claim or defense, a spoliation instruction should issue. See Brookshire Bros., Ltd., 438 S.W.3d at 25 (“On rare occasions, a situation may arise in which a party's negligent breach of its duty to reasonably preserve evidence irreparably prevents the nonspoliating party from having any meaningful opportunity to present a claim or defense.”) (citing Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003) (recognizing that “the loss or destruction of evidence may seriously impair a party's ability to present its case”)). In such circumstances, “the destruction or loss of the evidence, regardless of motive, could completely subvert the factfinder's ability to ascertain the truth” and “undermine the truth-seeking function of the judicial system and the adjudicatory process.” Id. at 16-17 (quoting Justice Rebecca Simmons and Michael J. Ritter, Texas's Spoliation “Presumption”, 43 St. Mary's L.J. 691, 701 (2012) and Trevino v. Ortega, 969 S.W.2d 950, 954 (Tex. 1998) (Baker, J., concurring) (observing that “[e]vidence spoliation is a serious problem that can have a devastating effect on the administration of justice”)). Appellant's request for a spoliation instruction was also denied.
“The Supreme Court has recognized the State in some instances has a duty to preserve evidence in its possession and the violation of this duty may rise to the level of a due process violation under the Fourteenth Amendment.” Zapata v. State, 449 S.W.3d 220, 228-29 (Tex. App.—San Antonio 2014, no pet.) (citing Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (per curiam); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); and California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)). Under the spoliation framework, courts analyzing due process violations must distinguish between two types of evidence. “If the State fails to preserve material, exculpatory evidence, then the State has committed a due process violation.” Id. (citing Youngblood, 488 U.S. at 57, 109 S.Ct. 333; and Brady, 373 U.S. at 83, 83 S.Ct. 1194). “However, if the State merely fails to preserve ‘potentially useful evidence,’ the defendant must show the State did so in bad-faith in order to show a violation of due process.” Id. (citing Youngblood, 488 U.S. at 58, 109 S.Ct. 333; and Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010)). It is noteworthy that the Texas Supreme Court has approvingly cited the Fourth Circuit Court of Appeals for the proposition that severe sanctions (including dismissal) can be warranted where a party's spoliation of evidence creates “extraordinary” prejudice or deprives it of “the only available evidence from which it could develop its defenses.” Brookshire Bros., Ltd., 438 S.W.3d at 25 (citing Silvestri v. Gen. Motors Corp., 271 F.3d 583, 593-94 (4th Cir. 2001)).
Accepting the trial court's assessment that the State did not act in bad faith, Appellant was still unable to prove his entitlement to a spoliation instruction under the Supreme Court's due process tests for the same reasons he could not prove the State committed a Brady violation, i.e., he could prove neither materiality nor “favorableness” of the evidence. However, we have been presented with a record which demonstrates (1) the State failed to “reasonably preserve evidence” in a manner that comports with the Michael Morton Act, (2) the State made no effort to rectify the prejudice it created, and (3) that said failure irreparably prevented Appellant from (at least) receiving a fair trial worthy of confidence. See Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”). The trial court's failure to remedy the State's misconduct therefore constituted fundamental error.
3. The data on the disc
Turning to the 7,098 pages, we know from Appellant's brief and the record that a key component of his defense was his contention that Complainant had received communications throughout the day from someone to whom he owed a significant sum of money. In my opinion, the contents of the withheld cell phone extraction records is further evidence that the trial court's actions were calculated to deprive Appellant of a fair and impartial trial, particularly because it appears no one has actually examined those records. Specifically, the cell phone extraction data contains approximately 140 text messages from the two months preceding the incident at bar, more than 20 of which show Complainant's ongoing financial difficulties and (some of) the consequences of not resolving them, e.g., the apparent issuance of a warrant for Complainant's arrest, his inability to secure funds to pay fines associated therewith, and the possibility of going to jail for years as a result.23
4. The impact of the data's absence on Appellant's trial
These text messages reveal several crucial pieces of information, none of which were made available to Appellant before trial despite requests, constitutional guarantees, statutory protections, and ethical duties. First, Complainant was clearly not telling the truth when he testified that he had been without service on his phone for two or three months prior to August 20, 2015; this is precisely the type of impeachment evidence the Michael Morton Act was intended to provide. Second, these text messages reveal a substantial number of Complainant's written communications in the six weeks before he was shot were related to his significant financial issues concerning cars, phones, parents, and even an active warrant (potentially with an accompanying threat of “years” worth of jail time);24 such texts are directly relevant to Appellant's version of the story and would have permitted his counsel to meaningfully explore such issues on cross-examination and to call multiple witnesses capable of proving the nature of Complainant's financial difficulties.
As if the content of these texts was somehow insufficient to trigger guaranteed protections or remedies designed to remedy inevitable violations of such protections, the extraction also reveals Complainant contacted “Annie” on July 15 at 9:09:09 p.m., “Mom” on July 25, 2015 at 8:20:11 a.m.,25 and “Trent” at 12:31:45 a.m. on the morning he was shot (despite (1) his testimony that he did not have service for two or three months before that same day and (2) the State's express reliance on that testimony).26 No one can seriously question that impeaching Complainant concerning his professed inability to communicate with his cell phone after July 13 via his own mother (or impeaching him and his mother via the extracted report) could conceivably raise reasonable doubt in the mind of a reasonable juror, particularly concerning Complainant's credibility.
Even without examining the data, any reasonable attorney would know that a reasonably performed extraction of such data would reveal (at least) that (1) the phone received calls at a particular time, (2) the phone did not receive calls at a particular time, (3) relevant data had been deleted, or (4) there was a problem with the extraction. Here, Sergeant Arredondo gave the State actual notice that the call log was not downloaded; as a result, the prosecution failed in its duty to recognize the misleading nature of Investigator Johnson's testimony when she testified that the cell phone extraction contained no relevant information concerning Complainant's use of his cell phone. See Duggan, 778 S.W.2d at 468-69 (“It does not matter whether the prosecutor actually knows that the evidence is false; it is enough that he or she should have recognized the misleading nature of the evidence.”) (citing Agurs, 427 U.S. at 103, 96 S.Ct. 2392; Giglio, 405 U.S. at 154, 92 S.Ct. 763 (“whether the nondisclosure [is] a result of negligence or design, it is the responsibility of the prosecutor.”)); see also Napue, 360 U.S. at 269-70, 79 S.Ct. 1173 (“That the district attorney's silence was not the result of guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could in any real sense be termed fair.”) (quoting People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853, 854-55 (1956)); Harris v. State, 818 S.W.2d 231, 233 (Tex. App.—San Antonio 1991, no pet.) (“[K]nowledge of the police will be imputed to the prosecutor.”); cf. Zule v. State, 802 S.W.2d 28, 33 (Tex. App.—Corpus Christi 1990, pet. ref'd) (“The State is responsible for disclosing favorable evidence known by its agents, including police officers, even if the particular evidence is not known to the prosecuting attorney.”).
“When evaluating whether the materiality standard is satisfied, the strength of the exculpatory evidence is balanced against the evidence supporting conviction.” Pena, 353 S.W.3d at 812 (citing Hampton, 86 S.W.3d at 613). “The suppressed evidence is considered collectively, rather than item-by-item.” Id. (citing Kyles, 514 U.S. at 436, 115 S.Ct. 1555). “[I]t is important to consider how disclosure could have affected defense preparation, with an awareness of the difficulty of post-trial reconstruction.” Id. (citing Bagley, 473 U.S. at 683, 105 S.Ct. 3375). Thus, “[s]ometimes, what appears to be a relatively inconsequential piece of potentially exculpatory evidence may take on added significance in light of other evidence at trial.” Id. (quoting Hampton, 86 S.W.3d at 613).
The withheld extraction undermines confidence in the outcome of the trial. See Pena, 353 S.W.3d at 812-13. Here, Complainant and Appellant each had a story; part of Complainant's story was false and part of Investigator Johnson's testimony tending to corroborate said falsity was also false. Without these, the jury would have weighed Appellant's story against Complainant's story without an inaccurate State-sponsored thumb on the scale. Cf. Taylor v. Illinois, 484 U.S. 400, 412 n.16, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (The “growth of discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system.”) (citing Wardius v. Oregon, 412 U.S. 470, 473-474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)). If Appellant had been provided with the phone or the extraction, it would have foreseeably and materially affected his defense preparations. This is particularly important given the State's opening emphasis on witness credibility and facts not matching up in light of the evidence 27 and closing insistence that whatever was happening with Complainant's phone, “We know it wasn't people calling ․ [Complainant] testified that he had no minutes left”28 (despite the fact that Sergeant Arredondo neither downloaded the call logs nor preserved the original data so that the call logs could be analyzed by a competent professional capable of doing so).
After examining the contents of the 7,098 pages dumped on Appellant during trial, I would conclude the State's ongoing refusal to even examine the documents used to support its case improperly denied Appellant the opportunity to meaningfully present his case, to be heard at a meaningful time in a meaningful manner on dispositive issues, and to a fair and impartial trial worthy of confidence. Despite knowing Complainant still has the cell phone in his possession and knowing the performed extraction was incomplete, we have been presented with no evidence that the State has made any effort to preserve (much less discern) the truth of what relevant, exculpatory, or impeachment evidence is on Complainant's cell phone. This evidences the State's ongoing violation of a statutorily-imposed duty. See Hallman, 603 S.W.3d at 191 (“The recent changes to Article 39.14 create a general, continuous duty by the State to disclose before, during, or after trial any discovery evidence that tends to negate the defendant's guilt or to reduce the punishment he could receive.”) (citing Ex parte Martinez, 560 S.W.3d 681, 702 (Tex. App.—San Antonio 2018, pet. ref'd); Cynthia E. Hujar Orr & Robert G. Rodery, The Michael Morton Act: Minimizing Prosecutorial Misconduct, 46 St. Mary's L.J. 407, 414 (2015) (stating that “for the first time, the prosecution is under a statutory duty to continually disclose exculpatory evidence”)); see also Ex parte Temple, 2016 WL 6903758, at *3 n.20 (“The Michael Morton Act created a general, ongoing discovery duty of the State to disclose before, during, or after trial any evidence tending to negate the guilt of the defendant or reduce the punishment the defendant could receive.”); compare Tex. Code Crim. Proc. Ann. art. 39.14(h) (“Notwithstanding any other provision of this article, the state shall disclose to the defendant 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.”); with id. art. 39.14(k) (“If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.”).
VI. New trial
Finally, we review the trial court's ruling on a motion for new trial for an abuse of discretion. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014). This analysis examines whether the trial court acted without reference to any guiding rules or principles. Id. Given the numerous violations, abuses, harms, and State-sponsored misrepresentations outlined above, I cannot (after considerable effort) ascertain what rules or principles the trial court was even attempting to follow when it acknowledged the Michael Morton Act demanded more of the State yet permitted the State to proceed without even attempting to provide Appellant with a remedy or a meaningful opportunity to review inexcusably withheld evidence that it knew was more than 7,000 pages long.29
It is inconceivable to me that the jury could have been unaffected by either (1) the State's presentment of a critical corroborating fact concerning the existence of relevant records via Investigator Johnson, or (2) Appellant's inability to impeach or even question the credibility of Complainant or Investigator Johnson based on the State's failures. The trial court's refusals to provide any remedy evidences an implicit bias in favor of the State and law enforcement insofar as it accepted the prosecutor's representations regarding what was on the disc while also accepting his representation that he did not even have access to the underlying data.
“While Justice may be blind, she is not naïve[.]” Francis v. State, 425 S.W.3d 554, 559 (Tex. App.—Fort Worth 2014, no pet). When presented with fundamental error and facts which evidence violations of clearly established constitutional rights, United States Supreme Court precedent, and state law designed to prevent and rectify such violations, we cannot justifiably close our eyes to the resulting injustices. See Anderson v. Cox, 45 S.W.2d 339, 339 (Tex. App.—Eastland 1931, no writ) (“[W]e would not meet the requirements of justice were we to close our eyes to fundamental error when found.”). Even if Appellant is guilty of a crime, he cannot be legitimately deprived of his fundamental right to evidence which (1) challenged Complainant's veracity, (2) challenged Investigator Johnson's knowledge, and (3) tended to corroborate his story concerning Complainant's motives (particularly given his timely requests for the device, data from the device, time, the opportunity to consult with an expert, a mistrial, and a new trial). See Tex. Const., art. I, § 19; see also Tex. Code Crim. Proc. Ann. art. 1.04.
Both Brady and the Michael Morton Act are aimed at remedying the intermittent absence of fair trials (whether by accident or design). Nevertheless, the State's misconduct paired with the trial court's errors improperly prevented Appellant from (1) having the information necessary to establish materiality, and (2) proving his entitlement to multiple forms of relief. This deprivation of a fair and impartial trial constitutes harmful fundamental error that “undermine[s] the truth-seeking function of the judicial system and the adjudicatory process.” Brookshire Bros., Ltd., 438 S.W.3d at 16-17.
The State made multiple independent failures to properly extract the data in question, to retain it, to provide it to either the evidence custodian or prosecutor, and to provide it to Appellant's counsel. The magnitude of these fundamental errors is amplified by the fact that the trial court's rulings simultaneously deprived Appellant of both the ability to effectively cross-examine and confront the State's corroborating witness and a meaningful opportunity to be heard concerning his complaints under Brady, the Michael Morton Act, and principles of spoliation.
These are the precise harms which the Michael Morton Act was designed to prevent and the inequitable outcome herein could be replicated (accidentally or deliberately) by prosecutors absent judicial intervention. Therefore, I dissent.
1. CR 24-25.
2. CR 52.
3. 2 RR 25: 23-25, 26: 1-4.
4. 4 RR 78: 16.
5. 4 RR 8: 14-16.
6. 4 RR 16: 9-10.
7. 4 RR 22: 8-11.
8. 4 RR 20: 13-18; 4 RR 22: 2-3.DEFENSE COUNSEL: And, Judge, this is very unfamiliar for me, so I'm –THE COURT: Well, I mean –DEFENSE COUNSEL: – very nervous about –THE COURT: – you've got somebody with the sheriff's department that can tell you. ․ and you can get ․ Detective Arredondo to testify[.]THE COURT: Right now, the data they're looking at doesn't support your client's position.
9. See 4 RR 20: 25, 22-23.DEFENSE COUNSEL: I just feel uncomfortable any time I'm looking at something that I'm very unfamiliar with and I'm only relying on the expert of the State to decipher it for me and not –THE COURT: Well, it is what it is, you know. And I will tell you this, just for purposes of the record –DEFENSE COUNSEL: Yes, sir.THE COURT: – this is going to be admitted as an exhibit. It may or may not get in front of the jury, but it's going to be a part of this record, and for appellate purposes, you can send it to your expert, and you know, there may be some – you may find some smoking gun evidence, and it may come back, but I don't think it's there. It doesn't appear that it's there.DEFENSE COUNSEL: Judge –THE COURT: But you had the record –DEFENSE COUNSEL: – I don't think I'm able to do that in this condensed time frame. I believe they stated in the beginning that the total amount of data that we pulled off of here is 7,000 pages. I don't think that I can effectively [analyze] that data, and I don't think it's an effective remedy to say “Well, if you want to appeal it if it doesn't go your way, then, yeah, it will become part of the record.”THE COURT: Right now, the data they're looking at doesn't support your client's position. Right now, the data does not support your client's position so – but I'm going to give you every bit of benefit of the doubt. Again, I'm not going to allow this disk in unless you want it in. Right now, it doesn't sound like you want it in, and I'm going to let Detective Arredondo go through it and see if he can find something that supports your position, and if he does, I'm going to let it in.DEFENSE COUNSEL: Understood, Judge.THE COURT: Okay.
10. 4 RR 19: 5-12.SERGEANT ARREDONDO: Well, it depends on the device. I can't say every device, but some of them, it does get the call log, even some of them deleted. From looking at this, it doesn't appear that it even – it might not even have grabbed the call log.DEFENSE COUNSEL: It didn't grab the call log?
11. 4 RR 16: 9-10.THE STATE: It [the disc] just shows calls made or not made.
12. 4 RR 24: 9-15.THE COURT: But I'm giving the defense every benefit of the doubt. I think I'm being very fair in this case. He's able to look at it. If he wants to let it in, he can let it in. If he wants to keep it out – and right now, I can tell you, he's going to keep it out.
13. 4 RR 22: 9-16.
14. 4 RR 17: 4-10.
15. 5 RR 60: 15-18.
16. CR 104-110.
17. Although Appellant's motion for new trial invokes the Sixth Amendment, his appeal mentions it only once in a section header. Under the circumstances, this is an insufficient presentment of the issue to warrant appellate review. See Tex. R. App. P. 38.1(i) (requiring “appropriate citations to authorities and to the record”).
18. 4 RR 23: 8-22; 4 RR 11: 1-10.THE COURT: I mean, law enforcement's going to have to do a better job. They know – everybody knows – law enforcement knows Morton. They're going to have to tighten up their belts. They're going to have to start doing what their job is. It's not the DA's fault, but that doesn't make any difference. You've [sic] going to try the case, and Morton says that anything they have, you're responsible for, so, you know, law enforcement needs to step up. Morton means something. What we don't want is to another man like Michael Morton [to] spend years and years in prison for something he didn't do because something somebody hid something, and I'm not saying the State hid anything, but that's what it's supposed to prevent.THE COURT: And, you know, that's what Morton's all about is getting that – it's not – you didn't hide it, but Officer Johnson should have produced it․ She found it last night. She could have found it six months ago, bottom line.
19. See n.9, supra.
20. While the impact of Sergeant Arredondo's failure to retain the original is clear from the lack of call logs, this impact is clarified by the expert affidavit Appellant filed in connection with this case. The majority will not consider this evidence because it was not in the record, but its absence is based on the State's failure to produce it until well after Appellant filed his motion for new trial.
21. See n.18, supra.
22. 4 RR 18: 14-18.THE COURT: Your contention, which your client hasn't testified, but your contention – what you've stated to the jury is that a bunch of incoming calls [were] made that he refused to accept.DEFENSE COUNSEL: Correct.
23. See State's Exhibit 73 at pgs. 6910, 6914-6917; see also id. at pgs. 6986, 6960-62.
24. The record also reveals (1) Appellant requested that the trial court order the State to disclose records pertaining to its witnesses revealing “offenses pending between the date of this offense and trial, which might have a bearing on the witness's motive to testify ․” (CR 34) and (2) the trial court granted said order. CR 38. Despite said order, the record appears to be silent as to whether the existence of said warrant or the nature of Complainant's apparently alleged offense was disclosed to Appellant before trial.
25. 6 RR, State's Exhibit No. 73, at pg. 6941.
26. 5 RR 60: 15-18.THE STATE: We know it wasn't people calling ․ [Complainant] testified that he had no minutes left.
27. 2 RR 136: 7-14THE STATE: I want you to also keep in mind that when you hear the testimony, think about how you determine if somebody has credibility for what they're saying. I want you to take note, maybe just a mental note, but I want you to take note, any time their story changes or any detail even where it just doesn't match up, and I want you to look at their story and want you to look at the evidence and I want you to ask which story makes sense.
28. 5 RR 60: 15-18.
29. 4 RR 21: 19-22 (Appellant's counsel informing the court that he was told (because he had not even seen it yet) that the data in question was 7,000 pages).
Tracy Christopher, Justice
(Hassan, J., dissenting).
Response sent, thank you
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Docket No: NO. 14-19-00254-CR
Decided: September 22, 2020
Court: Court of Appeals of Texas, Houston (14th Dist.).
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