Opinion
No. 05-03-00241-CR
Opinion Filed October 14, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the County Criminal Court No. 1, Dallas County, Texas, Trial Court Cause No. MA02-34080-A. AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
William Scott Derossett appeals his conviction for driving while intoxicated. In two issues, appellant complains the trial court erred by giving the jury an Allen charge and by overruling his Brady motion. We affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, thus we do not recount the facts in detail. We issue this opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law to be applied in this case is well settled. In his first issue, appellant contends the trial court erred by giving an Allen charge after the jury informed the trial court it was unable to reach a unanimous verdict. According to appellant, the trial court erred by giving the instruction, the instruction was an improper comment on the weight of the evidence, and the charge was coercive. After the jury informed the trial court that it was unable to reach a unanimous verdict, the trial court submitted a supplemental charge to the jury. The charge given by the trial court was not coercive. It merely encouraged the jurors to reexamine his or her views and change his or her opinion if convinced it was erroneous, but it did not encourage surrendering honest convictions. Also, the charge was not specifically addressed to jurors holding a minority position. Thus, the trial court did not err by giving the supplemental charge. See Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App. 1996); Bledsoe v. State, 21 S.W.3d 615, 621 (Tex.App.-Tyler 2002, no pet.). Further, informing the jury that there was no reason to believe that the case could be tried again any better or more exhaustively, or informing the jury that there was no reason to believe any more or clearer evidence would be produced by either side is not an improper comment on the weight of the evidence presented at trial. See Arrevalo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App. 1973); Dodd v. State, 753 S.W.2d 519, 520-21 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Boyd v. State, 644 S.W.2d 857, 858 (Tex.App.-Tyler 1982, no pet.). We overrule appellant's first issue. In his second issue, appellant contends the trial court erred by denying his motion seeking the State's disclosure of the identity of paramedics and firefighters and any documents from such witnesses which would show whether or not he was intoxicated. We disagree. Under Brady, the State has an affirmative duty to disclose evidence favorable and material to a defendant's guilt or punishment. Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.Crim.App. 1993). A violation of that duty occurs when a prosecutor (1) fails to disclose evidence (2) which is favorable to the accused, and which (3) creates a probability sufficient to undermine confidence in the outcome of the proceeding. Kimes, 872 S.W.2d at 702. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002). Here, the record shows that the officer who responded to the scene did not know the names of the paramedics or firefighters who responded. There is no indication in the record that the prosecutor was aware of the names of who responded to the accident. Moreover, the officer testified that a paramedic who treated appellant indicated to the officer that appellant was intoxicated. Thus, the record shows the complained-of evidence was inculpatory, not exculpatory. Because appellant has failed to show that the State either had possession of or knew about the complained-of evidence and further failed to show that the evidence was favorable, we conclude the State did not suppress the evidence and there was no Brady violation. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.
See Allen v. United States, 164 U.S. 492 (1896).
See Brady v. Maryland, 373 U.S. 83 (1963).