In Alcorta v. Not Reported in S.W.3d, 2011 WL 3672091 (Tex.App.-Hous. (14 Dist.)), the prosecutor failed to tell the defense attorney that the cop was working under a "DWI Safe and Sober" grant. Defense counsel did not learn of the same until the cop testified on direct during the trial. Rather than cross-examining the cop, the defense counsel upon learning that such was the case, immediately issued a subpoena for the records keeper (Mitchell) to appear the next day with the grant documents. It was counsel's intention to re-call the arresting officer once the documents were produced, but the prosecutor released the cop from trial.
The records keeper failed to appear under subpoena the next day. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, according to the appellate court the record did not reflect that appellant ever moved for a continuance. (The appeals court was apparently unwilling to accept the word of defense counsel absent extrinsic proof of the truth of his assertion). The defendant was found guilty thereafter.
Defense Counsel filed a motion for new trial. The trial court admitted into evidence the subpoena directing Mitchell to appear at trial. The subpoena does not reflect what time it was served on July 13, 2010. The trial judge also admitted into evidence documentation relating to the grant program. Trial counsel testified that had he received the documents, he would have laid the predicate for admissibility, recalled Officer Murray and questioned him about the grant program, and questioned Mitchell about how the police department benefits from the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.
The evidentiary hearing on appellant's motion for new trial centered primarily on documentary evidence of the grant program and the subpoena and service thereon in procuring those documents. Appellant's trial counsel testified that although a subpoena was served on Mitchell on the day of trial, the grant program documents were not received until a couple of days following the jury's verdict. According to trial counsel, had he received the documents in time, he would have recalled Officer Murray to question him about the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.
*6 The prosecutor testified that Officer Murray had been excused at the end of his trial testimony. The prosecutor stated that Officer Murray would not have been subject to cross-examination of the grant program documents because he had been excused by the trial court with the agreement of both parties. The trial judge clarified that had the officer been subject to recall, she would have considered that as a “heads up” and that she may have allowed the officer to testify again. Neither trial counsel nor the trial judge could remember whether the officer was subject to recall, but they agreed that the record will speak for itself. The trial record reflects that, contrary to the prosecutor's testimony, at the conclusion of his testimony, Officer Murray was excused subject to recall and that the trial court ensured the State had a contact number by which to reach the officer at a later time.
In denying the motion for new trial, the trial judge noted that because appellant's trial counsel did not cross-examine Officer Murray about the grant program, she could not rule on whether the grant documents would have been relevant or admissible without knowing what arguments trial counsel would have made at that time. The trial judge could not remember the off-record discussions at trial relating to the grant program documents. The trial court denied the motion based on the testimony at the evidentiary hearing.
On appeal, the court wrote as follows:
"According to appellant, as raised in both his second and third issues on appeal, the State failed to disclose evidence that Officer Murray was working pursuant to the state-funded DWI grant program at the time of appellant's arrest. Appellant points to the grant program documents, as produced at the hearing on his motion for new trial, as being material and favorable evidence to his defense that was withheld in violation of his due process rights under Brady v. Maryland. See 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). We presume for the sake of argument that the grant program documents in question constitute Brady material. The opportunity to request a continuance once Brady material is disclosed at trial adequately protects due process. See Payne v. State, 516 S.W.2d 675, 677 (Tex.Crim.App.1974). When, as in this case, the State's failure to disclose Brady material is discovered during trial, the accused is entitled to a recess to obtain production of the material, even if the defense did not make pre-trial efforts to obtain it. Crawford v. State, 892 S.W.2d 1, 4 (Tex.Crim.App.1994). When an accused fails to request a continuance, he waives any error resulting from the State's failure to disclose evidence. See Lindley v. State, 635 S.W.2d 541, 543–44 (Tex.Crim.App.1982). The record does not reflect that appellant sought a postponement or moved for continuance upon learning of the grant program,FN1 which would have allowed him time to address the impact of the evidence and develop any necessary response to it. Appellant did not seek this relief and consequently waived any error. See Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet. ref'd); Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.); see also Lindley, 635 S.W.2d at 544; Zule v. State, 802 S.W.2d 28, 33 (Tex.App.-Corpus Christi 1990, pet. ref'd)."
FN1. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, the record does not reflect that appellant ever moved for a continuance. Appellant did not address this assertion at the hearing on his motion for new trial.
After the appeals court refused to believe defense counsel's assertion that he requested a continuance (and that it was denied), the court found waiver of the issue on appeal. What is distressing about this part of the appeal is that apparently the neither the prosecutor nor the trial court disagreed with the defense counsel's assertion that he sought a continuance. In fact, there were several off-the-record discussions, as noted by the appellate court. So why was defense counsel's statement that he asked for a continuance completely ignored by the appellate court?
A second ground raised involved playing the video portion of the HGN test. During the trial the court privately viewed the video and suppressed the results of the HGN, as having been improperly administered. Nevertheless it still allowed the video portion of the tape showing the HGN test to be played in front of the jury to show the defendant was swaying. On this issue the appeals court wrote:
"The trial court excluded the audio portion of the HGN test from evidence because Officer Murray failed to follow proper procedures in administering the test; that ruling is not contested on appeal. See Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). But, appellant's physical behavior during the test is relevant for the purpose of evaluating his physical faculties, and the portion of the video shown during trial without audio was admissible for that purpose. See Miffleton, 777 S.W.2d at 80. Therefore, the trial court did not err in admitting the video-only portion of the HGN test in which appellant allegedly swayed. See id. We overrule appellant's fourth issue."
Concluding, the appellate court affirmed the conviction in this matter.
Editor's note: It is dismaying that an appellate court would not accept as fact that a continuance was requested and denied, when an officer of the court swore as such in his post-trial motions filed with the trial court and in his appellate brief, when such an averrance was not contested by the trial court nor the prosecutor.
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