Opinion
No. 13-07-00532-CR
Delivered and filed October 21, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 275th District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and VELA.
MEMORANDUM OPINION
A jury found appellant Misael Gonzalez guilty of capital murder. See Tex. Penal Code Ann. § 19.03(a)(8) (Vernon Supp. 2010) (providing that a person commits capital murder if he murders an individual under six years of age). Because the State did not seek the death penalty, an automatic life sentence without the possibility of parole was imposed. See id. § 12.31(a) (Vernon Supp. 2010). By two issues, Gonzalez contends that the trial court erred (1) in admitting evidence not previously disclosed by the State in violation of a discovery order, and (2) in denying his request for a mistrial when a comment made by the prosecutor allegedly shifted the burden of proof to the defense. We affirm.
Gonzalez was indicted on one count of capital murder, one count of murder, and one count of injury to a child. See Tex. Penal Code Ann. §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(8) (Vernon Supp. 2010), 22.04(a) (Vernon Supp. 2010). Because the murder allegation was submitted to the jury as a lesser-included offense of capital murder, the murder count was dismissed. Although the jury found Gonzalez guilty of injury to a child in addition to capital murder, the State dismissed the injury to a child count because of double jeopardy concerns.
I. Background
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
II. Discussion A. Admission of Undisclosed Exhibits
In his first issue, Gonzalez contends that the trial court erred in admitting exhibits not previously disclosed by the State.1. Standard of Review and Applicable Law
When reviewing a trial judge's decision to admit or exclude evidence, an appellate court must determine whether the judge's decision was an abuse of discretion. . . . And when the trial judge fails to enter written or oral findings of fact, an appellate court will "view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006) (quoting State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (en banc)) (other citations omitted). Gonzalez's appellate contentions are challenges to (1) the trial court's implied finding that the State did not violate the discovery order willfully, and (2) its failure to find harm. See Hall v. State, 283 S.W.3d 137, 165 (Tex. App.-Austin 2009, pet. ref'd) (op. on reh'g) (citing Cooks v. State, 844 S.W.2d 697, 734 n. 32 (Tex. Crim. App. 1992); Oprean v. State ( Oprean II), 238 S.W.3d 412, 415 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (op. on remand)). We accordingly evaluate the record support for those findings. "Evidence willfully withheld from disclosure under a discovery order should be excluded. . . ." Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978). Therefore, the relevant inquiry is whether the prosecutor acted with specific intent to willfully disobey a discovery order when she failed to disclose evidence as ordered. See Oprean, 201 S.W.3d at 727; Walker v. State, No. 01-08-00557-CR, 2009 Tex. App. LEXIS 8347, at **7-12 (Tex. App.-Houston [1st Dist.] Oct. 29, 2009, pet. dism'd, untimely filed) (designated for publication). When discussing whether a prosecutor acted willfully, the court of criminal appeals has considered the following: (1) whether the prosecutor intended to harm the defense; (2) whether the prosecutor's actions were a strategic and purposeful effort to thwart the defense's preparation of its case; (3) whether the prosecutor acted with a specific purpose or conscious decision to disobey the court's discovery order; (4) whether the prosecutor's explanation for violating the discovery order was valid; and (5) whether the prosecutor discovered or received the evidence at a time or in a manner such that compliance with the terms of the discovery order was impossible. Oprean, 201 S.W.3d at 727-28 (citing LaRue v. State, 152 S.W.3d 95, 96-99 (Tex. Crim. App. 2004) (en banc)); Walker, 2009 Tex. App. LEXIS 8347, at **8-9. If it is determined that the prosecutor acted willfully and the trial court erroneously admitted the complained-of exhibits, harm must be shown to require reversal. See Cooks, 844 S.W.2d at 734 n. 31 (citing Hollowell, 571 S.W.2d at 180). In this case, the harm we consider is that caused by the State's failure, if any, to disclose the exhibits as required by the discovery order. See id. at 734 n. 32. "In so doing, we take into consideration the intended purpose of the discovery order: to prevent surprise and to permit appellant to prepare an adequate defense." Oprean II, 238 S.W.3d at 415.2. Willful Violation of the Discovery Order
During a pre-trial hearing regarding, among other things, the logistics of providing trial exhibits, the trial court ruled that if either expert "print[ed] something out of [the CD] that [he] intend[ed] to use at trial, then [counsel] need[ed] to show it to [o]pposing [c]ounsel and get his or her initials on that exhibit at least . . . 7 days before trial. Unless that's going to be a problem." The State argued in favor of the order, expressing a concern that the defense, during its case-in-chief, might produce exhibits that contained manipulated information such as printed changes in the format of a CD. The trial court indicated that it did not "want any surprises by either side or attorneys from either side claiming that they're surprised that they hadn't been shown those exhibits that [were] being tendered." It did not "want to have to deal with the issue of surprise by either side as to exhibits that [were] going to be used by the experts." Defense then suggested that if the exhibits came in after that seven-day deadline, counsel would approach the court for a ruling, because it would be likely that it would not be a surprise. In response, the trial court commented that it "may be inclined to deny the admission of any exhibits . . . unless there's a good cause." Before jury selection, the trial court again ordered that "[counsel] meet and exchange any exhibits that [they] plan[ned] to offer so that nobody w[ould] be surprised." At trial, exact duplicates of the child's electronic radiology records, including films and radiology reports, were admitted as State exhibits 59A-61C through the testimony of Carlos Pena, assistant director of the radiology department at McAllen Medical Center. In addition, the child's digital radiology records, produced as CDs, were admitted as State Exhibit 65 and described as "CT scan." A companion exhibit, labeled State Exhibit 64, was also admitted. This exhibit was described as "System pack [or PACS] download." Omar Cantu, the storekeeper of digital imaging for the medical facility, testified that no alterations or changes had been made to the child's records when they were transferred from the mainframe system at the medical center to the CDs. These exhibits were admitted without objection. On the day Dr. Lukefahr was called to testify, the State provided Gonzalez with eight additional exhibits prepared by Dr. Lukefahr from the child's radiology records. In preparing these materials, Dr. Lukefahr enlarged some record images, changed the brightness or contrast levels of others, and added descriptive words or arrows to some images. It is undisputed that the State did not provide these newly prepared materials to Gonzalez prior to trial as required by the trial court's pretrial discovery order. At a hearing on this matter, the prosecutor explained that she had not provided the new exhibits to Gonzalez earlier because Dr. Lukefahr had prepared them the night before he was to testify and had given them to her that morning. While recognizing that at least one of the exhibits had been manipulated in some fashion and others had arrows or words added, the prosecutor also advised the trial court that the images from which Dr. Lukefahr prepared the new exhibits had been previously admitted. The record also establishes that, prior to trial, defense counsel had the radiology records or had access to the records, as did Gonzalez's medical expert. Gonzalez's objection of "utter surprise" was overruled. Gonzalez then "request[ed] a continuance [of at least a week] to allow an opportunity to have [his] expert . . . review this material." Cf. Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) ("The failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise."). The trial court denied the request and also denied Gonzalez's motion for mistrial. Nothing in the record indicates that the prosecutor knew the complained-of exhibits existed and that she willfully concealed the exhibits from defense counsel until trial was underway. The State brought the exhibits to the attention of defense counsel the morning they were received. Although Gonzalez argues that the prosecutor must have known that the exhibits were forthcoming, except for the prosecutor's comment at the pretrial hearing that potential manipulation of the records was a concern of hers, there is nothing in the record to support this contention. The prosecutor informed the trial court that defense counsel had knowledge of the substance of the exhibits because the radiology records had been admitted as trial exhibits, without objection. The State also disclosed the radiology records to Gonzalez prior to trial, pursuant to the discovery order, and the new exhibits were portions of those previously-produced records. Based on the above, we conclude that the prosecutor did not act willfully. The prosecutor's actions were not consistent with an intent to harm the defense, with a strategic and purposeful effort to thwart the defense's preparation of its case, or with a specific purpose or conscious decision to disobey the court's discovery order. See Oprean, 201 S.W.3d at 727-28. The prosecutor's explanation for violating the discovery order was valid; the prosecutor received the new exhibits — produced from exhibits that had already been admitted at trial and reviewed by Gonzalez's expert — at a time such that compliance with the terms of the discovery order was impossible. See id. The trial court's implicit finding that the prosecutor did not willfully withhold the exhibits is supported by the record, and thus, the trial court did not abuse its discretion in overruling Gonzalez's objection and admitting the exhibits. See id. at 726.3. Harm
Even if the trial court erroneously admitted the complained-of exhibits, Gonzalez must show harm based on surprise or on his inability to prepare an adequate defense because of the State's discovery order violation. See Cooks, 844 S.W.2d at 734 n. 31; Oprean II, 238 S.W.3d at 415. We conclude that he has not.a. Surprise
Gonzalez asserts that he was harmed because he was surprised. However, prior to trial, the State disclosed the child's radiology records, and Gonzalez's expert had access to those records. The records were also admitted into evidence at trial, without objection, on May 10, 2006, and Dr. Lukefahr did not began testifying until May 16, 2006. Therefore, defense counsel had knowledge of the substance of the exhibits through the earlier-produced records. Furthermore, Dr. Lukefahr discussed each newly produced exhibit in conjunction with the electronic or digital image from which it was taken. For example, Dr. Lukefahr explained that he had changed the brightness and contrast on one exhibit to make the fracture lines more visible. He testified that he added arrows to other images for quick reference in order to illustrate particular aspects of the exhibit. Throughout his testimony, Dr. Lukefahr emphasized certain portions of the earlier-admitted records to illustrate the basis for his conclusion that the child had died from Shaken Baby Syndrome. We cannot conclude that the prosecutor's actions unfairly surprised Gonzalez.b. Opportunity to Prepare a Proper Defense
Gonzalez also argues that he was harmed by the State's violation of the discovery order because he was not permitted to prepare a proper defense. Also, citing to the concurrence in Oprean, Gonzalez complains that his due process right to adequate notice was denied because "[t]he images were sprung approximately nine days into the trial in the State's case-in-chief. When ruled admissible, defense counsel's attempts for some form of postponement to prepare were denied." See Oprean, 201 S.W.3d at 729 (Cochran, J., concurring). However, after the State concluded its examination of Dr. Lukefahr, the trial court recessed for lunch providing time for Gonzalez to review the exhibits in preparation of his cross-examination of the doctor. When the afternoon session began, Gonzalez asked Dr. Lukefahr questions regarding "certain images that [he] personally found significant in this case," including the printouts of State exhibits 98 (skull image printout), 101 (rib x-ray printout), and 102 (rib x-ray printout) — images Dr. Lukefahr used during the State's direct examination. Importantly, Dr. Lukefahr's testimony concluded on May 16, 2007, and Dr. Rose was not called to testify until May 22, 2007, six days later. Before testifying, Dr. Rose reviewed the child's medical records, including reports, films, and CDs. He also reviewed the exhibits used by Dr. Lukefahr, as well as the transcript of Dr. Lukefahr's testimony related to those exhibits, and offered his opinion on both at trial. Defense counsel utilized some of the complained-of exhibits during the examination of his expert. And, through his testimony, Dr. Rose compared the medical records with Dr. Lukefahr's testimony, highlighted discrepancies and weaknesses, and provided his interpretation of images prepared by Dr. Lukefahr. Finally, Dr. Rose discussed images he himself had printed from the CDs, noting that each contained the following caution: "WARNING! THE QUALITY OF THIS IMAGE PRINTOUT MAY NOT BE ADEQUATE. IT SHOULD THEREFORE NOT BE USED FOR DIAGNOSTIC PURPOSES." Dr. Rose testified that the warning was necessary because a printed image may have "some artifact [from the printer], . . . some distortion . . . [that] is just not there" on the image. Based on this printed warning and Dr. Rose's testimony, Gonzalez was able to raise some inferences at trial regarding the validity of exhibits printed from the electronic and digital radiology reports and used by Dr. Lukefahr to support his conclusions. In summary, the trial court recessed for lunch after the State finished its direct examination of Dr. Lukefahr. This recess provided defense counsel an opportunity to view the newly produced images and to prepare a defensive strategy before he cross-examined Dr. Lukefahr. After lunch, the defense questioned Dr. Lukefahr about the new exhibits. Six days later, Dr. Rose testified. Dr. Rose's testimony addressed concerns the defense had about Dr. Lukefahr's exhibits and the conclusions they supported. It is apparent that Gonzalez had the opportunity to prepare an adequate defense. See Oprean II, 238 S.W.3d at 415. Gonzalez's concerns about his due process right to adequate notice are also unfounded. See Oprean, 201 S.W.3d at 729 (Cochran, J., concurring). Here, although the trial court immediately denied Gonzalez's motion to continue the trial, during the lunch recess Gonzalez had an opportunity to review the exhibits and prepare his defense. This recess, coupled with the fact that Dr. Rose did not testify until six days later, protected Gonzalez's due process right to adequate notice. See id. We conclude that Gonzalez was not surprised and was permitted to prepare an adequate defense. Thus, the intended purpose of the discovery order was satisfied, see Oprean II, 238 S.W.3d at 415, and his due process rights were satisfied. See Oprean, 201 S.W.3d at 729 (Cochran, J., concurring). Gonzalez was, therefore, not harmed by the State's failure, if any, to disclose the exhibits. See Cooks, 844 S.W.2d at 734 n. 32. Accordingly, we overrule Gonzalez's first issue.B. Prosecutor's Statement Regarding Paramedics Testifying
By his second issue, Gonzalez argues that the trial court erred in denying his request for a mistrial. Gonzalez contends that while the prosecutor's comment may have been an attempt to discredit one of the State's exhibits, it instead impermissibly shifted the burden of proof to Gonzalez to prove his defensive theory. We disagree.1. Standard of Review and Applicable Law
An appellate court reviews a trial court's ruling on a motion for mistrial . . . using an abuse-of-discretion standard of review. We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Thus, a trial court abuses its discretion in denying a motion [for mistrial] only when no reasonable view of the record could support the trial court's ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). The State has the burden to prove the elements of the offense beyond a reasonable doubt. See Tex. Penal Code Ann. § 2.01 (Vernon 2003) ("All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt."). And, "[t]he defendant in a criminal trial should be allowed to argue any defensive theory supported by the evidence admitted at trial." Arnold v. State, 68 S.W.3d 93, 102 (Tex. App.-Dallas 2001, pet. ref'd) (citing Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997) (en banc) (discussing jury instructions available on affirmative defenses)). However, when a defendant raises a defensive theory, the State's burden of proof does not change; the defensive theory merely casts doubt upon whether the State has met its burden. See Walters v. State, 247 S.W.3d 204, 209-10 (Tex. Crim. App. 2007) (discussing the burden of proof with regard to an alibi and concluding that a special instruction on this defensive theory would constitute an unwarranted comment on the weight of the evidence). In other words, although the State has no burden of production of evidence on a defensive issue, once a defense is raised the State has the burden to persuade the jury with respect to that issue. Allen v. State, 253 S.W.3d 260, 267 n. 24 (Tex. Crim. App. 2008). Also, error in admitting improper evidence, or, in this case, an improper comment, is generally cured by an instruction to disregard, with the only exception to this rule being extreme cases where it appears that the comment was clearly calculated to inflame the minds of the jurors and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds. See Thrift v. State, 176 S.W.3d 221, 224, n. 10 (Tex. Crim. App. 2005). It is also presumed that jurors follow judicial instruction. See id.2. Shifting of Burden
Gonzalez cross-examined Dr. Turlapati about State's Exhibit 67, a Med-Care Ambulance report, when the following exchange occurred:Q. This is State's Exhibit No. 67. This is a Med-Care report, Med-Care Ambulance. . . . Would you agree with that?
A. Yes, I do.
. . . .
Q. [W]hen the Med-Care Ambulance arrived, the chief complaint was cardiac arrest and the child had not been breathing for 15 minutes?
A. Yes.
Q. And at that time they indicate here: Patient in cardiac arrest?
A. Yes.
. . . .
Q. [On page 2 at the very bottom], we again have the front and back view of the body?
A. Yes.
Q. And there's no indication on either of those of any sort of physical injury?
A. Yes.
Q. Yes, there is not?
A. There is no indication.
. . . .
Q. Now Doctor, let[']s go back to the same exhibit. Patient not breathing for 15 minutes. But let's go up here to the top, incident date, January 1st. Time arrived on the scene. You see that, 1350?
A. Yes.
Q. That's 1:50 P[.]M[.]?
A. Yes.
Q. So at 1:50 P[.]M[.] we know the child had no physical markings on his body. We know the child —
[The State]: I will object to the — I will object to the mischaracterization of the evidence. There is no indication on the record — this doesn't necessarily mean there are no physical markings. There is a different —
The Court: Sustained.
[The State]: If he wants to call in the paramedics to say that, fine.
[Defense]: I will object to the State shifting the burden of proof in front of the jury. I ask that the —
The Court: Sustained.
[Defense]: I ask that the jury disregard the last comment.
The Court: Jury is instructed to disregard the last comment made.
[Defense]: While I appreciate the court's instruction, we would ask for a mistrial.
The Court: Denied.According to Gonzalez, part of his defense was that the child had no external injuries when the paramedics attempted to care for him and that the injuries noted later resulted from efforts to revive him. Gonzalez claims that he cited to the State's own exhibit as proof that the child's injuries were not obtained until after he was taken into medical care. Here, Gonzalez's defensive theory concerning when the child's injuries occurred involved an element of the offense — that he intentionally and knowingly caused the child's death. See Tex. Penal Code Ann. §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(8). The State had no burden of proof beyond its initial burden to prove the elements of the offense beyond a reasonable doubt, see id. § 2.01, and we cannot conclude that the prosecutor's comment was an attempt to shift that burden. Gonzalez complains of only one comment about the defense's ability to present evidence and its failure to do so. The record reveals that, prior to making that comment, the State objected to defense counsel's characterization of the ambulance report as evidence that "the child had no physical markings on his body" as of 1:50 p.m. on January 1st. It is clear that the objection was made because Dr. Turlapati testified only that there was "no indication" in the report of "any sort of physical injury." The trial court sustained the State's objection. Immediately thereafter, the State commented that "[i]f [Gonzalez] wants to call in the paramedics to say [there were no physical markings], fine." The State did not comment that Gonzalez had the burden to prove, through its defensive theory, that he did not intentionally and knowingly cause the child's death. The State merely pointed out that Gonzalez could clarify that matter by calling the paramedics. While Gonzalez could argue any defensive theory supported by the evidence admitted at trial, see Arnold, 68 S.W.3d at 102, the State had no burden to produce evidence on Gonzalez's defensive issue. See Allen, 253 S.W.3d at 267 n. 24. The State only had the burden to persuade the jury with respect to that issue. See id. Thus, we conclude that the prosecutor's comment did not shift any burden of proof in this case. Nonetheless, even were we to conclude otherwise, the trial court sustained Gonzalez's objection, granted his request for an instruction to disregard, and did, in fact, instruct the jury to disregard the prosecutor's remark before it denied Gonzalez's request for a mistrial. Based on our review, the prosecutor's remark, even if deemed error, was not so inflammatory that its impression could not be withdrawn by the trial court's instruction to disregard. See Thrift, 176 S.W.3d at 224, n. 10. Presuming that the jurors in this case followed the trial court's instruction to disregard, we conclude that the instruction was sufficient to cure error, if any, caused by the challenged comment. See id. Therefore, viewing the evidence in the light most favorable to the trial court's ruling, we conclude that the trial court's denial of Gonzalez's motion for mistrial was within the zone of reasonable disagreement. See Webb, 232 S.W.3d at 112. The trial court's decision was neither arbitrary nor unreasonable and was, therefore, not an abuse of discretion. See id. Accordingly, we overrule Gonzalez's second issue.