No. 09-05-202 CR
Submitted on May 2, 2006.
Opinion Delivered June 28, 2006. DO NOT PUBLISH.
On Appeal from the County Court at Law No. 4, Montgomery County, Texas, Trial Cause No. 04-194937. Affirmed.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
HOLLIS HORTON, Justice.
Devin Michael Strong contends the trial court erred in denying his motions for new trial and for mistrial. In both motions, Strong alleged the State failed to disclose exculpatory evidence. We affirm.
Background
The State charged Strong with intentionally damaging a vehicle by scratching it with a key and causing a loss of more than $500.00, but less than $1,500.00. The charged conduct constitutes criminal mischief, a Class A misdemeanor. See Tex. Pen. Code Ann. § 28.03(a)(1), (b)(3)(A)(i) (Vernon Supp. 2005). A jury found Strong guilty of the offense, assessed his punishment at thirty days confinement, and recommended suspending his sentence. The trial court followed the jury's recommendation and placed Strong on community supervision for one year. At trial, Anders Karlsen testified that while he was sitting in his car, he heard a scratching noise coming from the rear driver's side. Karlsen looked over his shoulder and saw three boys, one of whom was Strong, walking past the car. Karlsen further testified that he observed Strong "keying" the car with a set of keys that had a blue number one hanging from the ring. When officers searched Strong, they found he had a ring of keys with a blue number one attached. A week before trial, another of the three boys, David Lobue, provided a written statement to investigators in which he stated that he was walking ahead of Strong when Karlsen's car was "keyed." Though the State did not call Lobue as a witness, Strong called him. Contrary to his written statement, Lobue testified at trial that he was behind Strong as they walked past the car and that he did not see Strong commit the offense. Lobue further testified that his written statement was incorrect and that after giving the statement, he told the prosecutor he was behind Strong and did not see Strong key the car. Strong maintains the State did not disclose this new, exculpatory information until after the jury retired to deliberate. The State concedes that the information is exculpatory and that the prosecution did not timely disclose it. However, the State maintains that Strong did not preserve his complaint for appellate review because he failed to request a postponement or seek a continuance during or after Lobue's testimony. Instead, the State argues, Strong waited until the jury returned an adverse verdict before raising his complaint. We agree. Applicable Law
A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999). To determine whether a prosecutor's actions violate a defendant's due process rights, we employ a three-part test. We consider whether: (1) the prosecutor failed to disclose evidence; (2) the evidence is favorable to the accused; and (3) the evidence is material ( i.e., whether a reasonable probability exists that the result of the proceeding would have been different if the evidence had been disclosed to the defense). Little, 991 S.W.2d at 866. When the disclosure of evidence occurs at trial, the issue becomes whether the tardy disclosure prejudiced the defendant. Id. If the defendant received the material in time to use it effectively at trial, his conviction should not be reversed just because it was not disclosed as early as it should have been. Id. When the disclosure of previously withheld evidence occurs at trial, the defendant preserves error by requesting a continuance. Cohen v. State, 966 S.W.2d 756, 763 (Tex.App.-Beaumont 1998, pet. ref'd). "The failure to request one waives any Brady violation, as well as any violation of a discovery order." See Young v. State, 183 S.W.3d 699, 705-06 (Tex.App.-Tyler 2005, pet. ref'd) (citing Gutierrez v. State, 85 S.W.3d 446, 452 (Tex.App.-Austin 2002, pet. ref'd); Williams v. State, 995 S.W.2d 754, 761-62 (Tex.App.-San Antonio 1999, no pet.). "It is only when a trial court denies a request for continuance based on a Brady violation that a defendant may follow with a request for a mistrial." Cohen, 966 S.W.2d at 764-65. In this case, the defense attorney called Lobue as a witness. Lobue testified that Strong was in front of Lobue when they walked beside the car and that Lobue did not see Strong key the car. Instead of asking for a continuance, defense counsel continued to question Lobue. In addition, defense counsel examined Lobue three times on redirect and each time elicited reassurances from Lobue about the truthfulness of his trial testimony. However, defense counsel never requested a continuance. Thus, Strong waived any Brady violation that may have occurred. We overrule Strong's sole issue and affirm the trial court's judgment.