Opinion
No. 14-04-00371-CR
Opinion filed May 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 959,049. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
MEMORANDUM OPINION
A jury found appellant, Andre Williams, guilty of murder and assessed a life sentence and a $10,000 fine. In his first eleven issues, appellant contends the trial court erred by interfering with his cross-examination of a witness, admitting certain evidence, failing to give proper notice of pretrial hearings, denying funds to hire experts, allowing allegedly improper jury argument, denying access to evidence including allegedly exculpatory evidence, improperly responding to a jury note, and showing bias towards him. In his twelfth and final issue, appellant challenges the factual sufficiency of the evidence supporting the jury's verdict. Appellant has also filed a motion to abate which we ordered taken with the case. We deny the motion to abate and affirm the conviction.
Initially, we note that appellant, who has appeared pro se during the guilt/innocence phase of his trial and on appeal, presents many issues that are confusing, multifarious, and overlapping, but we have tried to discern all his complaints. However, as we will discuss, some issues are inadequately briefed to the extent that he has waived appellate review. See Kindley v. State, 879 S.W.2d 261, 264 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (stating pro se litigant is held to same standards as attorney and must comply with briefing rules).
I. BACKGROUND
On Sunday, August 17, 2003, appellant had been living with his mother, Betty Baird ("Betty"), and his stepfather, Bill Baird ("Bill"), in their Harris County home for about a year and a half because he was unemployed and recently divorced. Betty testified that on Sunday evening, while the family sat in the living room, Bill expressed disapproval that appellant had not found a job and his own place. Appellant replied "I'm sorry you feel that way" and left the room. Bill had difficulty walking due to recent surgery. While Betty helped him walk to the kitchen, he said, "So, now you're going to kill me?" As Betty turned to see whom Bill was addressing, she heard a "popping" noise, saw a "red flash" in Bill's neck/collarbone area, and saw him fall to the floor. Betty noticed appellant was back in the living room and was very agitated and yelling and jumping up and down. Appellant then ran down the hall but quickly returned holding a gun. As Betty lay on Bill attempting to shield him, appellant shot Bill in the head. Betty ordered appellant to leave the home, so she could call 911 because Bill was still alive. Appellant shot Bill again and said "he's not alive now." Betty heard a total of five shots. According to Betty, appellant then prevented her from calling 911 or leaving the home. She asked if he planned to kill her. Appellant replied, "I'm not going to kill you, but I'm very highly agitated so don't do anything to upset me." Appellant forced Betty into her bedroom, cut the bedroom telephone cord, insisted she remain quiet, and gave her some medication which caused her to sleep until the next morning. On Monday morning, appellant took Betty to the kitchen where he had Bill's wallet and checkbook laying out and made her write a check for $600. Otherwise, Betty remained confined to her bedroom until Wednesday afternoon. At some point, she heard a "grinding" noise and noticed the air conditioner was turned extremely low. Appellant told her he would be running the machine for awhile and he had to keep the house cold. Betty also smelled bleach and baby powder. Appellant told her he was cleaning the house and she might smell strong chemicals. On Wednesday afternoon, Betty signaled through a window for a neighbor to call the police. The Harris County deputies who initially responded testified that Betty met them at the front door, and she was frightened and distraught and begged for help. She said that she was being held hostage and that appellant killed her husband and "grinded him up." Appellant was not in the home when the officers arrived. He was arrested in Harrison County, Texas about a week after the murder when officers found him asleep in the truck he had been driving. The Harris County deputies who investigated the Bairds' home found most of Bill's dismembered body parts, iced down and placed in trash bags and Rubbermaid-type containers in various locations in the home. They also determined some parts of the home had been thoroughly cleaned. They found a hand-held power saw identified as a "Sawzall," the Sawzall blades, two hacksaws, bleach, baby powder, cleaning wipes, and rubber gloves. The State presented evidence that on the Monday and Tuesday after the murder, appellant went to Home Depot and a grocery store and purchased a Sawzall, Sawzall blades, cleaning and odor control supplies, large containers, trash bags, a shovel, and ten bags of ice. Additionally, in appellant's bedroom, deputies found three handguns, what appeared to be a homemade silencer, and hand-written notes entitled "Plausible Deniability" which appear to outline a schedule for obtaining supplies, dismembering the body, and cleaning the scene. The medical examiners who performed Bill's autopsy testified that he sustained at least two fatal gunshot wounds: one bullet traveled through the breastbone, aorta, and lung, and another bullet entered the back of his head and traveled through the brain. A deputy firearms examiner testified that one bullet was fired from one gun found in appellant's bedroom. He testified that the other bullet could have been fired from another gun found in appellant's bedroom, but the bullet was too deformed to make a definite conclusion. Several other witnesses testified regarding incriminating statements and behavior by appellant during the week between Bill's murder and appellant's arrest. One of the Bairds' neighbors testified that when she saw appellant on Tuesday, he had changed his appearance by shaving his mustache, lightening his hair color, and cutting his hair. Appellant's friend, Sharon McDonald, testified that on Wednesday or Thursday, he left her a message, stating he was suicidal. Later, when she spoke with him personally, he said he had "done something bad." He also said that he had been burying body parts, and when he returned to the home, police had arrived, so he kept driving. Appellant's ex-wife, Deborah Jacobs, testified that appellant called her on Wednesday and said something had happened to Bill. On Thursday, when she met appellant in the Dallas area to get their dogs, he said he wanted to kill himself. Deborah called authorities and gave them the license number for the truck appellant was driving.II. CROSS-EXAMINATION OF BETTY BAIRD
In his first issue, appellant contends the trial court violated the confrontation clauses of the United States and Texas constitutions by improperly interfering with his cross-examination of Betty. The confrontation clauses guarantee a defendant the right to cross-examine witnesses. See U.S. CONST. Amend. VI; TEX. CONST. Art. I, § 10. However, the trial court has the discretion to limit the scope of cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Ho v. State, 171 S.W.3d 295, 304 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). We review a trial court's decision to limit cross-examination under an abuse of discretion standard. Id. (citing Love v. State, 861 S.W.2d 899, 903 (Tex.Crim.App. 1993)). First, appellant complains that the trial court continually sustained the State's objections, and thus, engaged in a "tag team" effort with the State to disrupt his cross-examination of Betty. Appellant lists numerous record references where the trial court allegedly "wrongfully" sustained the State's objections, but he does not explain why the objections were improperly sustained. Without a showing that the trial court improperly sustained the objections, we cannot conclude that the trial court improperly limited cross-examination simply because it continually sustained objections. Next, appellant complains that the trial court discontinued his initial cross-examination of Betty and resumed it later, and, therefore, broke the continuity while he was "chipping away" at Betty's credibility. However, Texas Rule of Evidence 611 provides, in pertinent part, that a trial court "shall exercise reasonable control" over the order of interrogating witnesses to "make the interrogation and presentation effective for the ascertainment of the truth" and "protect witnesses from harassment. . . ." TEX. R. EVID. 611(a). The record reflects that the trial court discontinued appellant's initial cross-examination of Betty because after at least four hours in one day, the seventy-three-year-old witness was "awfully tired," shaky, and not feeling well. The trial court allowed appellant to resume the cross-examination when Betty returned five days later. Considering Betty's age and condition, the trial court did not abuse its discretion by discontinuing the cross-examination and resuming it later. Finally, appellant contends the trial court improperly questioned Betty, effectively serving as prosecutor and undermining appellant's ability to defend himself. However, in the instances cited, the trial court actually assisted appellant by suggesting how to properly frame his questions to avoid an objection or obtain a responsive answer. Therefore, these "questions" did not undermine appellant's ability to defend himself. See Ross v. State, 800 S.W.2d 262, 265 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd) (finding no error in trial court's asking witness a question during defendant's cross-examination to clarify defendant's questions because trial court did not act as litigant or convey its opinion of the case). Appellant's first issue is overruled.III. ADMISSION OF EVIDENCE
In his second, fifth, and tenth issues, appellant argues the trial court erred by admitting certain evidence. We review the trial court's admission of evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). Unless the trial court's ruling falls outside the zone of reasonable disagreement, we will not disturb it. Id. A. Dismemberment Evidence in General Appellant contends the trial court erred by generally admitting evidence that he dismembered Bill's body because it was irrelevant and alternatively, any relevance was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.1. Relevancy
Appellant essentially contends that the dismemberment evidence was irrelevant because it concerns an extraneous offense — abuse of corpse. Although evidence of other crimes, wrongs, or acts is not admissible to prove a person's character to show he acted in conformity therewith, the evidence may be admissible if relevant for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b). This list of exceptions is not exclusive. Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App. 2005). One recognized exception is evidence of an extraneous offense tending to show "consciousness of guilt." See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App. 1996) (op. on rehearing); Torres v. State, 794 S.W.2d 596, 598-99 (Tex.App.-Austin 1990, no pet.). Criminal acts designed to reduce the likelihood of prosecution, conviction, or incarceration for the charged offense are admissible under Rule 404(b) to show "consciousness of guilt." Ransom, 920 S.W.2d at 299. Specifically, attempts by the defendant to suppress evidence are admissible to prove the defendant committed the charged offense. See Rodriguez v. State, 577 S.W.2d 491, 492-93 (Tex.Crim.App. 1979); Torres, 794 S.W.2d at 598-99. Here, appellant's dismemberment of Bill's body shows an attempt to conceal evidence of the murder and avoid detection. "Dismemberment of a person's body after killing him is hardly the action of an innocent accused, and evidence of such is probative of guilt." See Schexnider v. State, 943 S.W.2d 194, 202 (Tex.App.-Beaumont 1997, no pet.). Thus, the dismemberment evidence was relevant to prove appellant's "consciousness of guilt" with respect to Bill's murder. See id. (holding evidence that defendant dismembered victim's corpse after murder was admissible to show "consciousness of guilt" and defendant's attempt to conceal his crime). Accordingly, the trial court did not abuse its discretion by finding the dismemberment evidence was relevant and admissible under Rule 404(b).2. Rule 403
Appellant also contends the dismemberment evidence was inadmissable under Texas Rule of Evidence 403 because it was unfairly prejudicial. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. A trial court should consider the following factors when conducting a Rule 403 "balancing test": (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004); Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). Here, the first, third, and fourth factors of the Rule 403 "balancing test" weigh in favor of admissibility. With respect to the first factor, as we have discussed, the dismemberment evidence had probative value because it demonstrated appellant's attempts to conceal evidence of the crime. With respect to the third factor, the State spent considerable time presenting evidence that appellant dismembered the body. However, much of the evidence was circumstantial, such as appellant's purchase of supplies and the deputies' finding the supplies and body parts in the home; thus, the State needed significant evidence to prove appellant dismembered the body. Further, the large volume of evidence was necessary to show the lengths to which appellant went to dismember the body, such as keeping his mother captive, purchasing supplies, hiding various body parts in the home, and burying other body parts. When addressing the fourth factor, we should answer three sub-questions: (1) does the proponent have other available evidence to establish the fact of consequence that the evidence is admissible to show?; (2) if so, how strong is that other evidence?; (3) and is the fact of consequence related to an issue in dispute? Erazo, 144 S.W.3d at 495-96. The State had other strong evidence to prove appellant murdered Bill including Betty's testimony. However, appellant suggested at trial that Betty murdered Bill. Appellant and Betty were the only persons present when Bill was murdered. Therefore, the State needed evidence that appellant dismembered the body to prove appellant, not Betty, murdered Bill. Only the second factor weighs somewhat in favor of exclusion. However, although the facts of dismemberment are generally gruesome and would tend to leave an emotional impression on the jury, this factor is not compelling enough to outweigh the other factors. Accordingly, the trial court did not abuse its discretion by concluding that the probative value of the dismemberment evidence was not substantially outweighed by the danger of unfair prejudice. See Schexnider, 943 S.W.2d at 202 (holding trial court did not abuse its discretion by overruling defendant's Rule 403 objection to evidence that he dismembered murder victim's corpse; although the general public tends to have "repulsion and horror" toward such an offense, the evidence refuted defendant's claim that he acted in self-defense); see also Santellan v. State, 939 S.W.2d 155, 169-70 (Tex.Crim.App. 1997) (holding trial court did not abuse its discretion by overruling defendant's Rule 403 objection to evidence that he had sex with murder victim's corpse; although the evidence would potentially affect jury in an emotional way and State spent significant time on the subject, the State had a vital need for the evidence to prove defendant's intent to kidnap victim).B. Particular Dismemberment Evidence
Appellant also challenges admission of the following items of dismemberment evidence:1. "Plausible Deniability" Notes
Although appellant contends the "Plausible Deniability" notes were irrelevant, he offers no reason other than arguing they concern dismemberment in general. Regardless, the "Plausible Deniability" notes were particularly compelling. The title alone is significant. Moreover, the notes appear to outline a schedule for obtaining supplies, dismembering the body, and cleaning the scene. Therefore, the notes demonstrate appellant was so zealous to conceal evidence of the crime that he made a schedule for doing so. Accordingly, the trial court did not abuse its discretion by finding the notes were relevant.2. The Sawzall
Appellant further contends the trial court improperly admitted the Sawzall found in the Bairds' home because it was irrelevant; however, he again offers no reason it was irrelevant other than arguing it concerned dismemberment in general. Nonetheless, the Sawzall is clearly relevant considering the State asserted that it was used to dismember the body. In addition, appellant complains that the State presented a live demonstration of a Sawzall while questioning a deputy. This Sawzall used for demonstrative purposes was not the one found in the Bairds' home and was not admitted into evidence. Although appellant objected to admission of dismemberment evidence, he did not object to the live demonstration of this Sawzall. Therefore, he did not preserve error on this complaint. See TEX. R. APP. P. 33.1(a).3. Photograph of Severed Head
Appellant suggests the trial court should have excluded an autopsy photograph of Bill's severed head pursuant to Rule 403. When determining whether the relevance of photographs is substantially outweighed by the danger of unfair prejudice, we consider additional factors including the number of photographs, their size, their detail, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy. Erazo, 144 S.W.3d at 489; Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002). In addition, autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Hayes, 85 S.W.3d at 816. Here, these additional factors weigh in favor of the trial court's decision to admit the photograph. The copy of the photograph in the appellate record is small — three by five inches — and is black and white. Bill's severed head is lying face-up on a table, and there are cuts around the mouth area. However, the photograph shows no alterations made by the autopsy because the head was already severed and the mouth area was already cut when the body was brought in for autopsy. The photograph is gruesome, but no more gruesome than the facts of the dismemberment itself. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995) (recognizing trial court does not err merely by admitting gruesome photograph when the gruesomeness "emanates from nothing more than what the defendant has himself done."). Further, the trial court noted that although the autopsy photographs showing Bill's body parts were extreme, the State limited the number of photographs it offered. Moreover, with respect to the Rule 403 balancing test in general, the trial court recognized that appellant had insinuated that Betty murdered Bill and dismembered the body. The trial court stated that the autopsy photographs, including the photograph of Bill's severed head, showed that someone of Betty's size and physical condition was not capable of operating the Sawzall in a manner that would make the clean cuts depicted in the photographs. Accordingly, although the photograph of the head is gruesome, the trial court did not abuse its discretion by finding that its probative value was not outweighed by the danger of unfair prejudice.C. Testimony Regarding a Silencer
Appellant also contends the trial court improperly admitted evidence of a "silencer." At trial, Deputy James Lovett, who investigated the offense, was asked about a photograph depicting an object recovered from appellant's bedroom. The State asked Deputy Lovett, "What did it appear to be?" He responded, "Appeared to be a homemade silencer." Appellant made a "speculation" objection to this question, which the trial court overruled. The trial court did not abuse its discretion by finding the question did not call for "speculation" considering Officer Lovett was asked what the item "appeared" to be — not what the item was.D. Confession/Suicide Note
Appellant contends the trial court improperly admitted a confession/suicide note found in his truck after his arrest. The note was admitted during the punishment phase of the trial — not during the guilt/innocence phase. The only objection at trial that possibly comports with a complaint on appeal is a "relevancy" objection. However, on appeal, appellant challenges only the guilty verdict — not his punishment. Thus, he offers no argument as to how the note was irrelevant to the punishment determination or how he was harmed by admission of the note. Consequently, he has waived appellate review regarding admission of the note. See TEX. R. APP. P. 38.1(h) (requiring that brief contain argument with appropriate citations to authorities and the record); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App. 2000) (finding appellant waived appellate review of issue by failing to include argument and authorities).E. Testimony Regarding the Confession/Suicide Note
Appellant later seems to acknowledge that the confession/suicide note was not admitted during the guilt/innocence phase, but instead contends the trial court erred by admitting hearsay testimony regarding the note during the guilt/innocence phase. Deborah Jacobs testified that when she met appellant in Dallas a few days after the offense, he asked her for some paper and a pen to write a suicide note. However, at trial, appellant did not object to this testimony, and, thus, has waived his complaint that this testimony was hearsay. See TEX. R. APP. P. 33.1(a). We overrule appellant's second, fifth, and tenth issues.IV. NOTICE OF PRETRIAL HEARINGS AND FUNDS TO HIRE EXPERTS
Although appellant's third issue is couched in terms of "judicial bias" and "pattern of prejudice," he repeats many of his other complaints but also asserts the trial court did not give him adequate notice of pretrial hearings and denied him funds to hire experts.A. Notice of Pretrial Hearings
Appellant asserts the trial court did not give him ten-days notice of the hearings on his pretrial motions, including his motions to suppress, as required by article 28.01 of the Texas Code of Criminal Procedure. However, he misreads article 28.01. Article 28.01 provides that a trial court may set a pre-trial hearing to consider certain motions, including a motion to suppress. TEX. CODE CRIM. PROC. ANN. art. 28.01, § 1 (Vernon 1989). Whether to hold a hearing on a pretrial motion to suppress rests within the trial court's discretion; it can instead elect to address the admissibility of the evidence at issue during the trial after a proper objection is lodged. See Calloway v. State, 743 S.W.2d 645, 649 (Tex.Crim.App. 1988). However, when the trial court does set a pretrial hearing, "any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters." TEX. CODE CRIM. PROC. ANN. art. 28.01, § 2 (Vernon 1989). Article 28.01, section 2 does not require the trial court to give ten days notice of every pretrial hearing. See id.; Postell v. State, 693 S.W.2d 462, 465 (Tex.Crim.App. 1985); see also Sells v. State, 121 S.W.3d 748, 763 (Tex.Crim.App. 2003). Rather, article 28.01, section 2 provides that a defendant will not be bound to the seven-day limitation for raising or filing motions unless he has been accorded sufficient notice of the hearing to allow him at least ten days in which to raise or file such motions. See Tex. Code Crim. Proc. Ann. art. 28.01, § 2; Postell, 693 S.W.2d at 465; see also Sells, 121 S.W.3d at 763. Here, appellant filed numerous pretrial motions — sixty-eight, according to appellant. Just before trial started, the trial court held two hearings and considered appellant's motions in limine and several motions to suppress. There is no indication the trial court refused to consider any other motions because they were filed within seven days of the hearings; appellant filed most of his motions more than seven days before the hearings. Rather, the record indicates the trial court simply exercised its discretion to decline to hear most of appellant's motions at that time and instructed appellant that he needed to object as the evidence was offered during trial. Therefore, appellant has not demonstrated that the trial court violated article 28.01.B. Funds to Hire Experts
Appellant asserts the trial court denied him funds as an indigent to hire experts, particularly a private detective to locate witnesses. However, the record refutes this assertion. In response to appellant's motion, the trial court allowed funds for an investigator and ordered that appellant be allowed to meet with the investigator while in custody. In response to another motion, the trial court allowed funds for a psychiatric expert. Accordingly, we overrule appellant's third issue.V. JURY ARGUMENT
In his fourth issue, appellant contends that the State made improper jury argument in three instances: (1) an argument that the jury should not be "duped" by appellant; (2) an argument that "maybe he'd take care of his mother later"; and (3) operation of a Sawzall during argument. However, appellant did not preserve error as to these complaints. To preserve error regarding improper jury argument, a party must timely object and pursue his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). With respect to the arguments that the jury should not be "duped" and "maybe he'd take care of his mother later," appellant did not object at all. With respect to the Sawzall demonstration, appellant stated "I object" but provided no grounds and obtained no ruling. Consequently, we overrule his fourth issue.VI. ACCESS TO EVIDENCE AND WITHHOLDING OF EVIDENCE
Appellant's sixth issue appears to be two-part: the trial court denied him access to the evidence that was introduced at trial, and the State withheld other allegedly exculpatory evidence.A. Access to Evidence
Although it is not clear what appellant means by "access," he suggests he was not allowed to inspect the evidence. Article 39.14(a) addresses discovery in a criminal case. The former version of article 39.14(a) applicable to this case provided in pertinent part that "[u]pon motion of the defendant showing good cause . . . the [trial court] may order the State before or during trial . . . to produce and permit the inspection" of non-privileged evidence. Act of May 21, 1999, 76th Leg., R.S., ch. 578, 1999 Tex. Gen Laws 3118 (amended 1995) current version at TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (Vernon Supp. 2005)) (emphasis added). Under former article 39.14(a), a defendant did not have a general right to discovery of evidence in the State's possession. See Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App. 1980); Saldivar v. State, 980 S.W.2d 475, 496 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). Rather, former article 39.14(a) provided limited discovery, independent of the constitutional right of access to exculpatory evidence. Saldivar, 980 S.W.2d at 496. The decision on what was discoverable was committed to the discretion of the trial court. See Quinones, 592 S.W.2d at 940. A trial court abused its discretion only if it failed to permit discovery of evidence that was material to the accused's defense. See id. at 940-41. Nonetheless, approximately two months before trial, the trial court entered a "Discovery Order" allowing appellant discovery of virtually all the State's evidence. The trial court required the State to furnish some evidence to appellant, allow inspection of some evidence before trial, and allow inspection of other evidence at the time of trial. Further, this discovery order was entered on the same day that the trial court allowed appellant to proceed pro se. The court noted on the discovery order that the State's file had been open to appellant's previous attorney through that day. Therefore, the trial court allowed appellant more discovery than required at that time. At another point, appellant suggests he was denied "access" to the evidence because he was not allowed physical possession to obtain an "independent analysis." However, former and current article 39.14(a) provide[d] that "[n]othing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State." Act of May 21, 1999, 76th Leg., R.S., ch. 578, 1999 Tex. Gen Laws 3118 (amended 1995); TEX. CODE CRIM. PROC. ANN. art. 39.14(a). Accordingly, appellant was not entitled to physical possession of the evidence.B. Alleged Withholding of Exculpatory Evidence
Appellant also asserts that the State withheld the following exculpatory evidence: comparison of unidentified fingerprints found at the scene with Bill's and Betty's fingerprints and a national fingerprint database; analysis of Betty's bloody clothing and shoes; documents relating to appellant's previous legal name change; proof of ownership for the murder weapons; the investigating deputies' notes; the alleged silencer and any analysis; and ballistics analysis concerning a "second gun." Appellant is apparently asserting a Brady violation. When the State withholds evidence favorable to the defendant, due process is violated if the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). To invoke Brady, the accused must show that (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith, (2) the withheld evidence is favorable to the accused, and (3) the evidence is material; that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002); Wyatt, 23 S.W.3d at 27. Appellant cites various testimony that purportedly demonstrates the listed items existed, but the State failed to disclose them. However, the record reflects that at least some of these items did not even exist. With respect to the other items, appellant has not shown that the State failed to disclose them. As we have discussed, the trial court allowed appellant liberal discovery of the State's file. In fact, contrary to appellant's assertion, the record affirmatively reflects that the State provided appellant a copy of the ballistics report on the guns. Finally, to the extent the State did not disclose any of the remaining items, appellant has not shown they were favorable to him and material as required to invoke Brady. Except for the silencer, appellant offers no explanation whatsoever as to why the items were favorable and material, and it is not readily apparent that any of the items were favorable and material. Appellant argues that if he had been given access to the alleged silencer, he could have shown it was merely a water filter. However, when Deputy Lovett reviewed a photograph of this object at trial, he agreed it was a filter but indicated the filter was converted to a homemade silencer. Because Deputy Lovett agreed the object was a filter, any examination by appellant would not have negated that it was also used as a silencer. Therefore, appellant has not shown that examination of the silencer would have been exculpatory. We overrule his sixth issue.VII. JURY NOTE
In his seventh issue, appellant asserts the trial court failed to comply with article 36.27 of the Texas Code of Criminal Procedure when it responded to a jury note. Article 36.27 which governs jury communications with the trial court provides in pertinent part:The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 1981). Article 36.27 further provides that "All such proceedings in felony cases shall be a part of the record and recorded by the court reporter." Id. During deliberations, the jury sent a note requesting three items of evidence including the "suicide note." With respect to the "suicide note," the trial court wrote "not in evidence" on the jury's request. According to appellant, the trial court did not read this response to the jury's note in open court and in appellant's presence as required by article 36.27. The appellate record contains no record of a proceeding under article 36.27. However, even if the trial court did not comply with article 36.27, any error was harmless. When a trial court's communication with the jury does not amount to additional instructions, failure to comply with article 36.27 is not reversible error. McFarland v. State, 928 S.W.2d 482, 517-18 (Tex.Crim.App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App. 1998). Here, the trial court's response that a requested item was "not in evidence" does not amount to additional instructions; thus, any failure to comply with article 36.27 was not reversible error. See Rodriguez v. State, 625 S.W.2d 101, 102-03 (Tex.App.-San Antonio 1981, pet. ref'd) (finding trial court's non-compliance with article 36.27 when refusing jury's request for exhibits that were not admitted was not reversible error). Appellant's seventh issue is overruled.