Opinion
Nos. 13-09-00556-CR, 13-09-00557-CR
Delivered and filed November 18, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On appeal from the 347th District Court of Nueces County, Texas.
Before Justices YAÑEZ, GARZA, and BENAVIDES.
MEMORANDUM OPINION
The State of Texas challenges the trial court's orders granting pre-trial motions to suppress evidence and to strike a witness filed by appellees, Joshua Hild and Caleb Hild. We affirm.
I. BACKGROUND
On November 14, 2008, brothers Joshua and Caleb were jointly indicted on one count of murder. See TEX. PENAL CODE ANN. § 19.02 (Vernon 2003). On January 9, 2009, Joshua's attorney filed a `Motion for Discovery and Inspection" as well as a "Motion to Produce Exculpatory and Mitigating Evidence" with the trial court. On March 26, 2009, Caleb's attorney filed a similar "Motion for Discovery and Inspection" as well as a "Request for 404(b) Evidence and Punishment Phase Evidence Pursuant to Article 37.07 C.C.P. and Impeachment Evidence Under 609(f)." None of these motions were heard or ruled upon by the trial court. On October 2, 2009, three days before appellees' trial was scheduled, assistant district attorney Frank Errico informed both defense attorneys of a DVD recording he had found in the State's case file. The recording featured a September 2008 statement by a "jail house snitch" named Frank Garcia, in which Garcia stated what Caleb had told him "out in the exercise yard." Neither defense attorney was aware of the status of Garcia as a potential witness, or of the existence of the DVD recording, until they were informed by Errico three days before trial. Trial was set for October 5, 2009. On that day, appellees moved for a continuance, noting that the State had just recently notified the defense of Garcia's recording and his status as a potential witness. Joshua's attorney explained to the trial court that he had just learned of Garcia's statement on October 2, 2009, despite receiving other discovery material from the State as recently as December of 2008. Caleb's attorney explained to the trial court:What was happening is, we had continuing discovery. [Doug Mann, the prosecutor who had previously worked on the case,] handed us an [sic] initial discovery packets. We had an agreement if anything else came in, it was going to be delivered to us. He did deliver the [other] video, DVDs, sometime after the initial discovery of the statements of all the parties. Then he delivered photographs to us on one occasion, then he delivered the 911 tape. So he was continually delivering things. He just did not deliver the snitch from September. . . .Errico represented to the trial court that the State had possession of the Garcia video since September of 2008. He further stated that he did not know what was previously given to defense counsel by Mann, but that "I told these guys [defense counsel] about [the video] as soon as I found it."Errico then noted that, although the State has an "open file policy," it is nevertheless "incumbent upon [defense counsel] to come look at our file." The trial court asked Errico whether the DVD recording of Garcia's statement was actually contained in the State's open file; Errico stated that he did not know. The trial court then denied appellees' joint motion for continuance. Both defense attorneys then asked the trial court to suppress Garcia's statement and to strike him as a potential witness. The trial court granted the request, and the State appealed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (Vernon Supp. 2009) (permitting the State to appeal an order granting a defendant's motion to suppress evidence).