Opinion
No. 04-16-00648-CR
04-18-2018
Darrel K. BOWSER, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR5005
Honorable Mary D. Roman, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
Appellant Darrel Keith Bowser was convicted by a jury of continuous sexual abuse of a child. The jury assessed a $10,000.00 fine and ninety-nine years' confinement in the Texas Department of Criminal Justice—Institutional Division. Bowser appealed, arguing that the State's alleged Brady violation denied him due process and a fair trial, see Brady v. Maryland, 373 U.S. 83 (1963), and the trial court erred in admitting hearsay evidence. Because Bowser agreed to the continuance and did not reassert his motion for mistrial, he waived any Brady material error. Further, the trial court did not err in admitting the evidence; but even if it did, the error was harmless. Therefore, we affirm the trial court's judgment.
BACKGROUND
A. Persons Involved in this Case
The underlying case involves six principal persons—five of whom are related. K.D. is the child victim; at trial, she was seventeen years old. Saundra is K.D.'s sister; Saundra is five years older than K.D. Kenya is K.D.'s and Saundra's mother. Elaine is Kenya's mother, and K.D.'s grandmother. Bowser was married to Elaine; he was K.D.'s step-grandfather. Tracy Grant, initially designated as an outcry witness, was a childhood friend of Kenya, K.D.'s mother.
B. Allegations of Abuse; Investigation
From when K.D. was about five or six years old, she lived with her grandmother Elaine and her step-grandfather Bowser for several years. K.D. testified that Bowser had repeated sexual contact with her over a period of about three years. K.D. did not tell any adult about the sexual abuse until she told Tracy Grant, her mother's childhood friend. Tracy reported K.D.'s outcry to the police, and an investigation began. K.D. was interviewed, examined by a Sexual Assault Nurse Examiner (SANE), and the reports were provided to the State. C. Indictment; Late Brady Notice
Based on the results of the investigation, the State charged Bowser with one count of continuous sexual assault of a child. The State identified Tracy in its file as an outcry witness, but the notice was never given to the defense. Voir dire began on Wednesday, July 27, 2016; the jury members were selected, and the jury was sworn.
The State conceded it did not comply with the outcry statute. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2017) ("Hearsay Statement of Certain Abuse Victims"). Nevertheless, the State called Tracy Grant as a witness, albeit not as an outcry witness.
The next morning, on Thursday, July 28, 2016, before the trial began, the State interviewed Tracy for the first time. Tracy advised the State that she was childhood friends with Kenya, K.D.'s mother. Tracy stated that years ago, Kenya confided to Tracy that, while Kenya was a young girl, Elaine forced Kenya to have sex with men for money so Elaine could buy drugs. Tracy also advised the State that she had seen Elaine direct K.D. "to sit on the lap of men at parties."
The same day that Tracy disclosed the information to the State, the State provided defense counsel and the trial court with notice in accordance with Brady. The State explained its investigators had initially contacted Tracy in January 2016, but they lost contact with her. Tracy had been living out of state, had changed phone numbers about four times, and she had just returned to San Antonio. The State finally located Tracy and served her the morning of trial.
D. Motion for Mistrial; Reset Trial Date
Defense counsel moved for a mistrial. The trial court initially indicated it was inclined to grant the mistrial, but instead it granted a one-day continuance to allow defense counsel an opportunity "[t]o talk to [the] witnesses and see if there's something else you need to do, if you're satisfied with being able to go forward." On Friday, July 29, 2016, defense counsel argued the State's late-filed Brady material required investigation and counsel needed time to investigate and develop a defense. The trial court asked the State and the defense if trial could start on August 30th, and both sides agreed to that date.
As agreed, on August 30, 2016, the trial began. After two days of testimony, the jury found Bowser guilty of one count of continuous sexual abuse of a child and assessed punishment as a $10,000.00 fine and confinement in the Texas Department of Criminal Justice—Institutional Division for a period of ninety-nine years. Bowser appeals.
E. Appellate Issues
Bowser raises three issues; the first and second are intertwined. In his first issue, Bowser asserts the State's failure to timely provide him with Brady material denied him due process and a fair trial. In his second issue, Bowser asserts the trial court denied him sufficient time to investigate alternative perpetrator evidence. Bowser argues that for these two reasons, the trial court erred by denying his motion for mistrial. In his third issue, Bowser argues the trial court abused its discretion by admitting double hearsay evidence, and admitting that evidence was harmful error.
We begin with the alleged Brady material violations.
BRADY MATERIAL VIOLATION
Bowser's first two issues turn on the same facts: the State's notice and disclosure of Brady material on the morning of the first day of trial, the trial court's response, and Bowser's decisions. Bowser argues that he was deprived of due process and a fair trial because of the State's late Brady material notice, and the trial court erred by denying his motion for mistrial.
A. Standard of Review
We review a trial court's ruling on a motion for mistrial under an abuse of discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). "[We] view[] the evidence in the light most favorable to the trial court's ruling, [and we] consider[] only those arguments before the court at the time of the ruling." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). "[We] must uphold the trial court's ruling if it was within the zone of reasonable disagreement." Archie, 221 S.W.3d at 699 (citing Wead, 129 S.W.3d at 129); accord Ocon, 284 S.W.3d at 884. B. Brady Violation Procedure
"Brady and its progeny do not require prosecuting authorities to disclose exculpatory information to defendants that the State does not have in its possession and that is not known to exist." Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006) (quoting Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990), disapproved of on other grounds by Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990)).
Where the State makes Brady material available to the defense after the otherwise applicable statutorily-required period but before the trial has begun, the appropriate procedure is for the defendant to request a continuance to review the evidence. See TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2017) (requiring disclosure twenty days before trial); Branum v. State, 535 S.W.3d 217, 226-27 (Tex. App.—Fort Worth 2017, no pet.) (concluding that the defendant's failure to request a continuance after the State's late designation of a witness "render[ed] any error on the part of the trial court harmless"); Cohen v. State, 966 S.W.2d 756, 763 (Tex. App.—Beaumont 1998, pet. ref'd) (stating that in cases of a mid-trial Brady violation, "a defendant must first request a continuance in order to investigate the previously undisclosed evidence favorable to the defense").
As this court has previously held, a late notice violation of article 39.14(h) of the Texas Code of Criminal Procedure is subject to procedural default. See TEX. CODE CRIM. PROC. ANN. § 39.14(h); Prince v. State, 499 S.W.3d 116, 121 (Tex. App.—San Antonio 2016, no pet.). "The disclosure of Brady material at [or just before] trial gives the accused an opportunity to request a continuance to review the evidence, and this opportunity adequately satisfies the due process requirements of Brady." Cohen, 966 S.W.2d at 763; accord Perez v. State, 414 S.W.3d 784, 790 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ("The disclosure of Brady material during trial satisfies the requirements of due process '[i]f the defendant received the material in time to put it to effective use at trial.'" (alteration in original) (quoting Palmer v. State, 902 S.W.2d 561, 565 (Tex. App.—Houston [1st Dist.] 1995, no pet.)).
C. Arguments before the Trial Court
The jury was selected and sworn on Wednesday, July 27, 2016. The next day, Thursday morning, the State served Tracy Grant with a subpoena, and she appeared at the courthouse. Before the trial was to begin, the State interviewed Tracy—a witness whom the State had identified in January, 2016, but with whom it had lost contact. In her pretrial conference interview, Tracy disclosed that Elaine had sex trafficked K.D.'s mother Kenya when Kenya was about nine years old. And, many years later, when K.D. was living with Elaine, Tracy saw Elaine encourage K.D. to sit on men's laps at parties. When the State learned this information, it informed the trial court and defense counsel of this new information, and provided written notice to defense counsel.
Bowser moved for a mistrial, but the trial court granted a one-day continuance. See Perez, 414 S.W.3d at 790; Cohen, 966 S.W.2d at 763. The next day, Friday, July 29, 2016, defense counsel argued the State's late-filed Brady material required investigation and the defense needed time to investigate and develop a defense. The trial court asked the State and Bowser if trial could start on August 30th; both sides agreed. This dialogue followed:
THE COURT: Okay. What I'm going to do, [Defense Counsel], I'm going to give you your 30 days. We're going to postpone this trial to Tuesday, August the 30th, with hopes of finishing by Thursday, September the 5th. If not, we will carry over to September the 6th.As agreed, on August 30, 2016, the trial began. In open court, this dialogue followed:
[DEFENSE COUNSEL]: That's fine, Judge.
THE COURT: Is there anything we need to go over before I call the jury in? Anything about the indictment?
[THE STATE]: No, I think we already had the hearing on the motion to amend, Judge.
THE COURT: And everything is taken care of as far as the indictment is concerned?
[DEFENSE COUNSEL]: I believe so, Judge. I mean, I would renew my objection [to amending the indictment]. There was an amendment, which I objected to, and I reurge that, but other than that . . . .
[Discussion on any "movement in the case," the defendant's present location, the expected length of the trial, and an individual juror's personal situation].
THE COURT: . . . Anything else?
[DEFENSE COUNSEL]: Nothing.
[THE STATE]: No, Your Honor.
D. No Abuse of Discretion
Bowser argues the trial court abused its discretion by denying his motion for mistrial because the State's late notice that Tracy Grant might have Brady material denied him due process and a fair trial, but his argument is unavailing.
Even if we assume the State knew before Thursday morning that Tracy's testimony would include Brady material, the trial court provided defense counsel with additional time to investigate and prepare. Defense counsel asked for thirty days to investigate Tracy's statement and develop an appropriate defense. See Perez, 414 S.W.3d at 790 ("The disclosure of Brady material during trial satisfies the requirements of due process '[i]f the defendant received the material in time to put it to effective use at trial.'"); Cohen, 966 S.W.2d at 763.
More importantly, after the thirty-day period, defense counsel did not renew his motion for mistrial. To the contrary, when the trial court asked defense counsel if there was "anything we need to go over before [trial starts]," defense counsel said "Nothing."
Assuming without deciding that Bowser did not waive his complaint about the trial court initially denying his motion for mistrial, we must then consider whether the trial court's denial of his motion for mistrial was outside the zone of reasonable disagreement. See Ocon, 284 S.W.3d at 884; Archie, 221 S.W.3d at 699. To reiterate, the Brady notice relating to Tracy Grant was not disclosed until just before the trial was to begin. When defense counsel asked for thirty days to investigate the new information, the trial court granted the additional time. When the trial court asked if there was any matter to discuss before the trial began (on August 30th), Bowser said "Nothing." Defense counsel did not renew his motion for mistrial.
Viewing the evidence in the light most favorable to the trial court's ruling, we conclude that the trial court's decision to grant Bowser additional time to investigate the Brady material and to develop an appropriate defense was an appropriate procedure to ensure that Bowser was not deprived of due process or a fair trial. See Perez, 414 S.W.3d at 790; Cohen, 966 S.W.2d at 763. We conclude that the trial court acted within the zone of reasonable disagreement, and it did not abuse its discretion. See Ocon, 284 S.W.3d at 884; Archie, 221 S.W.3d at 699.
We overrule Bowser's first and second issues.
HEARSAY OBJECTION TO EVIDENCE
In his third issue, Bowser argues the SANE nurse's testimony—in which she read from a doctor's notes on K.D.'s medical examination—was inadmissible hearsay.
At trial, defense counsel sought to exclude State's Exhibit 2, K.D.'s SANE examination report. He objected on hearsay and Confrontation Clause bases. On appeal, Bowser cites Crawford v. Washington for the proposition that K.D.'s medical record was a type of testimonial statement, but he does not make a Confrontation Clause argument in his brief. See Crawford v. Washington, 541 U.S. 36 (2004). Regardless, he confronted K.D.; she testified at trial, and Bowser cross-examined her.
A. Relevant Facts
When K.D. made her outcry statement to Tracy, Tracy took K.D. to the hospital for a medical examination. At trial, the State offered State's Exhibit 2, which contained, inter alia, the examining physician's notes. Bowser objected to the document on hearsay and right of confrontation bases, but the trial court overruled the objections.
The State called the SANE nurse, and she testified to details regarding K.D.'s examination. She stated that she performed K.D.'s initial examination, but she was not present when the physician recorded his notes. On redirect examination, the State asked the SANE nurse to read from the medical notes the doctor entered, and Bowser objected on hearsay and confrontation grounds. The trial court overruled the objections, and the SANE nurse continued to read from the doctor's notes.
On appeal, Bowser does not argue the trial court improperly admitted State's Exhibit 2. Rather, he complains that the SANE nurse's testimony reading the doctor's notes from the medical examination record was inadmissible hearsay the State introduced to improperly bolster K.D.'s testimony.
B. Standard of Review
We review a trial court's decision to admit evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). "The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement." Martinez, 327 S.W.3d at 736; accord Casey, 215 S.W.3d at 879.
C. Applicable Law
The Rules of Evidence define hearsay and make hearsay generally inadmissible. See TEX. R. EVID. 801 (defining hearsay); id. R. 802 ("The Rule Against Hearsay").
Rule 803(4) creates an exception to Rule 802 for "[a] statement that . . . is made for—and is reasonably pertinent to—medical diagnosis or treatment; and . . . describes medical history; past or present symptoms or sensations; their inception; or their general cause." TEX. R. EVID. 803(4); accord Franklin v. State, 459 S.W.3d 670, 676 (Tex. App.—Texarkana 2015, pet. ref'd); Prieto v. State, 337 S.W.3d 918, 920 (Tex. App.—Amarillo 2011, pet. ref'd); Sandoval v. State, 52 S.W.3d 851, 855-56 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd).
Medical records containing the sexual assault victim's medical history, the victim's statements about the alleged assault, and the examining medical professional's notes fall within Rule 803(4)'s exception; they are admissible. See Franklin, 459 S.W.3d at 676; Prieto, 337 S.W.3d at 920; Sandoval, 52 S.W.3d at 855-56, 857.
If evidence is improperly admitted, but it is proved by other properly admitted evidence, admitting the evidence is harmless error. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) ("[A]ny error in admitting the [complained of] evidence was harmless in light of other properly admitted evidence proving the same fact."); see Tienda v. State, 479 S.W.3d 863, 881 (Tex. App.—Eastland 2015, no pet.); Infante v. State, 404 S.W.3d 656, 663 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
D. Any Error was Harmless
The State offered State's Exhibit 2, a thirty-five page exhibit of K.D.'s medical records including a thirteen-page forensic examination report. Bowser objected on hearsay and confrontation grounds, but the State argued that the exhibit fell under Rule 803(4)'s exception. The trial court overruled the objections, and it did not abuse its discretion by doing so. See Franklin, 459 S.W.3d at 676; Prieto, 337 S.W.3d at 920; Sandoval, 52 S.W.3d at 855-56, 857.
Because State's Exhibit 2 was properly admitted, when the trial court allowed the SANE nurse to read from the admitted exhibit, the trial court's decision was, at worst, harmless error. See Brooks, 990 S.W.2d at 287; Tienda, 479 S.W.3d at 881; Infante, 404 S.W.3d at 663. The exhibit had already been admitted, K.D. testified to the same facts in greater detail than what the SANE nurse read, and Bowser cross-examined K.D.
We overrule Bowser's third issue.
CONCLUSION
Whether the State was as diligent as it might have been in trying to find and subpoena Tracy Grant is of no legal consequence here. The trial court granted defense counsel's request for an additional thirty days to investigate the new Brady material and develop an appropriate defense. Defense counsel agreed to the rescheduled trial start date, and he did not renew his motion for mistrial before the trial restarted. Even if the thirty-day period to investigate did not cure any alleged Brady material violation, Bowser waived his Brady violation complaint by not reasserting his motion for mistrial.
At the conclusion of the hearing on the motion for continuance, the State explained to the trial court why the State could not locate Tracy Grant until the day of trial.
Further, State's Exhibit 2 (K.D.'s medical records) was properly admitted under the Rule 803(4) exception, and the SANE nurse's reading from the exhibit was, at worst, harmless error.
We conclude the trial court did not abuse its discretion for any of the issues Bowser raises. The trial court's judgment is affirmed.
Patricia O. Alvarez, Justice DO NOT PUBLISH