No. 14-08-00803-CR
Memorandum Opinion filed July 28, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1122489.
Panel consists of Justices YATES, GUZMAN, and SULLIVAN.
LESLIE B. YATES, Justice.
Appellant entered a plea of guilty, without an agreed recommendation on punishment, to the offense of aggravated robbery. After a presentence investigation ("PSI") and a hearing, the trial court assessed punishment at twelve years' imprisonment. In a single issue, appellant claims he was deprived of due process under the United States Constitution because the State failed to reveal to the defense, or to make clear to the trial court, that previous juvenile convictions it had attributed to appellant were not connected to appellant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was indicted for the aggravated robbery of a salesperson at a car dealership. The salesperson testified at the punishment hearing and said that appellant pointed a gun at his head, made him lie down on the floor, and tied his hands. When the salesperson was on the floor, appellant hit him with the gun. Appellant took from the salesperson more than $2700 in cash, his cellular phone, and the keys to a car. Prior to trial, the State filed a notice of intent to use extraneous offenses and prior convictions in which it listed the following offenses it intended to use at trial against appellant: (1) driving under the influence, (2) fraud — illegal use of credit cards, (3) shoplifting, and (4) operating a motor vehicle without a driver's license. The first three offenses were alleged to have occurred in Jacksonville, Florida. The fourth offense was alleged to have occurred in Harris County, Texas and New Orleans, Louisiana. After a jury was chosen, appellant entered a plea of guilty without an agreed recommendation from the prosecutor on punishment. The case was reset for a punishment hearing after a PSI was conducted. In the PSI report, the community supervision officer reported that appellant had no prior record. It was specifically noted that the Assistant District Attorney had provided juvenile records from Jacksonville, Florida for a defendant with a similar name and the same date of birth. The juvenile records were to be included in the PSI as extraneous offenses, but it was determined that the defendant in Florida was not appellant. At the punishment hearing, the complainant testified to the events of the robbery. Appellant's mother testified that she and appellant moved to Houston from New Orleans after Hurricane Katrina. She testified that appellant had never been in trouble and requested deferred adjudication community supervision for her son. The prosecutor did not mention the extraneous offenses or prior convictions at the punishment hearing, nor did she affirmatively address the mistake in the previously filed notice of intent. ANALYSIS
In a single issue, appellant contends he was deprived of due process because the prosecutor failed to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 87 (1963). A defendant's due process rights are violated when the State withholds material evidence favorable to the defendant. Olivarez v. State, 171 S.W.3d 283, 290 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The suppression 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. Brady, 373 U.S. at 87. "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id. Appellant argues that because the State did not correct the misinformation in its notice of intent beyond the statement made in the PSI report, it committed a Brady violation. The rule of Brady, however, applies when information known to the prosecution, but unknown to the defense, is not disclosed. United States v. Agurs, 427 U.S. 97, 103 (1976). In this case, appellant knew he had never been previously convicted in Florida. At the punishment hearing, defense counsel pointed out that appellant had no prior record despite the State's earlier assertions that he had a record from Florida. Counsel also pointed out that the probation department and the PSI report showed that appellant had no prior record. The State did not dispute defense counsel's statements. Brady simply does not apply in a situation such as this where the information was known to the defense. See Ex parte Chavez, 213 S.W.3d 320, 325 (Tex.Crim.App. 2006); Havard v. State, 800 S.W.2d 195, 205 (Tex.Crim.App. 1989). The record in this case does not reveal any act or omission on the part of the State or any of its agents that caused the trial court to be misinformed about appellant's prior record. Moreover, there is no evidence in the record that the trial court considered the offenses listed in the State's notice of intent. Appellant's sole issue is overruled. The judgment of the trial court is affirmed.