Opinion
No. 04-05-00205-CR
Delivered and Filed: March 22, 2006. DO NOT PUBLISH.
Appeal from the 63rd Judicial District Court, Val Verde County, Texas, Trial Court No. 9870, Honorable Watt Murrah, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Ramiro Castillo Cepeda was convicted of aggravated assault with a deadly weapon and sentenced to fifty-five years of confinement. Cepeda appeals, arguing that the trial court erred in denying his request for a jury instruction on the lesser-included offense of assault and in denying his motion for a new trial with respect to punishment because of an alleged Brady violation. We disagree and affirm the judgment of the trial court.
Background
After arguing with his estranged wife, Adela Cepeda, on the telephone, Ramiro Cepeda went to her place of employment at the Days Inn in Del Rio, Texas where he argued with her again. He then pulled out a knife and stabbed her six times. The manager of the Days Inn struggled with Ramiro Cepeda, trying to take the knife away from him. Meanwhile, another Days Inn employee telephoned 9-1-1. Ramiro Cepeda fled the scene, but was subsequently arrested. The knife he used to stab Adela Cepeda was found at the scene. Adela Cepeda was treated for stab wounds at the Val Verde Regional Medical Center and was later transported via helicopter to University Hospital in San Antonio, Texas where she remained for three days.Lesser-Included Offense
In his first issue, Cepeda argues that the trial court erred in denying his request for a jury instruction on the lesser-included offense of assault. We disagree. Cepeda was charged with aggravated assault with a deadly weapon. At trial, he requested a jury instruction on the lesser-included offense of assault causing bodily injury, but his request was denied by the trial court. In considering whether a jury instruction on a lesser-included offense should be given, we apply a two-prong test. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002). A charge on a lesser-included offense is required where (1) the lesser-included offense is included within the proof necessary to establish the charged offense, and (2) there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Id. When we review a trial court's decision to deny the requested instruction, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). More specifically, we examine the statutory elements of the charged offense as modified by the indictment. Id. Next, we examine the elements of the offense claimed to be a lesser-included offense to see if the elements are functionally the same as or less than those required to prove the charged offense. Id. Then, we examine the evidence actually presented to prove the elements of the charged offense to see if that proof also shows the lesser-included offense. Id. at 478-79. The evidence must be evaluated in the context of the entire record, and there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998). Any evidence that the defendant is guilty only of the lesser-included offense is sufficient to entitle the defendant to a jury charge on the lesser-included offense. Id. With regard to the first prong, assault is not always a lesser-included offense of aggravated assault. For example, in Irving v. State, 176 S.W.3d 842, 846 (Tex.Crim.App. 2005), the court of criminal appeals held that under the facts presented, assault was not a lesser-included offense of aggravated assault with a deadly weapon because the conduct constituting the lesser-included offense for which the defendant requested an instruction was different from the conduct alleged in the indictment. Thus, we must first consider whether, in this case, assault is a lesser-included offense of aggravated assault. Here, the indictment alleges that Cepeda committed the offense of aggravated assault when he:intentionally and knowingly use[d] a deadly weapon, to-wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury and did then and there intentionally and knowingly cause[d] bodily injury to Adela Cepeda by stabbing [her] with said deadly weapon.A person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). A person commits the offense of aggravated assault if he commits the offense of assault and he (1) uses or exhibits a deadly weapon during the commission of the assault or (2) causes serious bodily injury to another. Id. § 22.02(a). Here, Ramiro Cepeda stabbed his wife with a pocket knife. Unlike in Irving, Cepeda does not base his request for an instruction on conduct different from that alleged in the indictment. See Irving, 176 S.W.3d at 846. Instead, he argues that the pocket knife is not a deadly weapon. Therefore, in this case, assault is a lesser-included offense of aggravated assault with a deadly weapon. The first prong is satisfied. See Mendez v. State, No. 03-03-00602-CR, 2005 WL 3499460, at *5 (Tex.App.-Austin 2005, no pet. h.) (not designated for publication). Next, we apply the second prong of the test: whether there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Here, the difference between the charges of assault and aggravated assault is whether a deadly weapon was used or exhibited. According to Cepeda, because a pocket knife is not a deadly weapon per se, the jury "could have rationally only found him guilty of assault causing bodily injury if [the jury] did not feel comfortable that the knife was used as a deadly weapon." A deadly weapon is defined as "a firearm or anything manifestly designated, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 2003). Thus, Cepeda correctly states that a pocket knife is not always considered a deadly weapon. See Limuel v. State, 568 S.W.2d 309, 311-12 (Tex.Crim.App. 1978). It can be a deadly weapon, however, if in the manner of its use or intended use it is capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). And, a knife is capable of causing death or serious bodily injury if it is displayed in a manner conveying an express or implied threat that death or serious bodily injury will be inflicted. Id. Here, the manner in which Cepeda used the knife and the wounds he inflicted with the knife were sufficient to bring the knife within the definition of a deadly weapon. See Tex. Pen. Code. Ann. § 1.07(a)(17) (Vernon 2003). The record clearly establishes that the knife Cepeda used was a deadly weapon. Ramiro Cepeda used the knife to inflict wounds which required medical attention. Adela Cepeda testified that Ramiro Cepeda stabbed her with the knife six times, she was bleeding a lot, and she was afraid that Ramiro would kill her. The record shows that Ramiro Cepeda stabbed Adela Cepeda with a folding pocket knife, which had brass edges and a blade about three-and-a-half to four inches long. According to Officer Becerra, in his professional opinion, the knife Ramiro Cepeda used to stab Adela Cepeda, or any knife like it, was capable of producing the injuries received by Adela and that the knife was used in such a manner to be considered a deadly weapon. Furthermore, medical records from the Val Verde Regional Medical Center show that Adela Cepeda suffered numerous stab wounds and cuts. After her stab wounds were initially treated at the emergency room at Val Verde Regional Medical Center, Adela Cepeda was transported via helicopter to the University Hospital in San Antonio for further treatment. She remained at the hospital for three days. There is no evidence to suggest anything other than Cepeda used and intended to use the knife in such a manner that the knife was capable of causing serious bodily injury or death. Thus, we hold that Cepeda was not entitled to an instruction on the lesser-included offense of assault and that the trial court did not err in refusing to grant his requested instruction. See Martin v. State, No. 04-03-00014-CR, 2004 WL 1054728, at *2-3 (Tex.App.-San Antonio 2004. pet. ref'd). Cepeda's first issue is overruled.
Brady Violation
In his second issue, Cepeda argues that the trial court erred in denying his motion for a new trial or new punishment hearing because the State violated Brady in failing to provide medical records from University Hospital where Adela Cepeda was treated for stab wounds. Under Brady v. Maryland, 373 U.S. 83, 87 (1963), the State has an affirmative duty to disclose evidence favorable and material to a defendant's guilt or punishment under the Due Process Clause of the Fourteenth Amendment. Thomas v. State, 841 S.W.2d 399, 407 (Tex.Crim.App. 1992). Once such exculpatory evidence comes into its possession, the State's duty under Brady attaches, with or without a request from the defense for disclosure. Id. For a court to find reversible error under Brady, a defendant must show that: (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and (3) the evidence is material, i.e. there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002). We must analyze the alleged Brady violation "in light of all the other evidence adduced at trial." Id. at 612-13. And, we do not apply the separate harmless error standard for reversal for constitutional error contained in rule 44.2(a) of the Texas Rules of Appellate Procedure. Id. at 612. Nonetheless, the Supreme Court has held that the prosecution is not required by the Constitution to make a complete and detailed accounting to defense counsel of all police investigatory work on a case. Moore v. Illinois, 408 U.S. 786, 795 (1972); Ransonette v. State, 550 S.W.2d 36, 40 (Tex.Crim.App. 1976). Although the State has a duty to disclose exculpatory information in its possession, it has no duty to seek out such information independently on the defendant's behalf. See United States v. Bagley, 473 U.S. 667, 675 (1985). Brady does not require the State to produce exculpatory information that it does not have in its possession or that is not known to exist. Johnson v. State, 901 S.W.2d 525, 533 (Tex.App.-El Paso 1995, pet. ref'd). Furthermore, the State is not required to furnish the defendant with exculpatory and mitigating evidence that is equally and fully accessible to the defense. Taylor v. State, 93 S.W.3d 487, 499 (Tex.App.-Texarkana 2002, pet. ref'd); Flores v. State, 940 S.W.2d 189, 191 (Tex.App.-San Antonio 1996, no pet.); see also Jackson v. State, 552 S.W.2d 798, 804 (Tex.Crim.App. 1976). The threshold question in evaluating a Brady claim is whether the favorable evidence was suppressed or withheld by the State or its agents. Franks v. State, 90 S.W.3d 771, 797 (Tex.App.-Fort Worth 2002, no pet.). "This first element of Brady is present if the prosecution actively suppresses evidence or negligently fails to disclose it." Taylor, 93 S.W.3d at 499. However, there is no Brady violation if it is not shown that the defendant was denied access to the allegedly favorable material. Id. Here, Cepeda has failed to satisfy this threshold requirement. Cepeda complains that he was not provided with medical records from University Hospital in San Antonio and that these records might have shown that Adela Cepeda was not stabbed six times:The medical records from Val Verde Regional Medical Center were filed and admitted into evidence in the case. The alleged victim testified that she has been stabbed six times by Appellant. After being taken to Val Verde Regional Medical Center, Adela Cepeda was transported via helicopter to University Hospital in San Antonio. No medical records from University Hospital were provided to Appellant or his counsel, nor were they admitted into evidence. . . . It was fundamental error [for] the State [to fail] to provide material mitigation evidence in this case, [because] any record from University Hospital could have been used in the punishment phase of trial to allow Appellant the opportunity to argue that there were not "six" stab wounds, especially in light of the fact that the State alleged only bodily injury instead of serious bodily injury.
The record, however, does not show that the State was in possession of the medical records from University Hospital and suppressed or withheld them. Moreover, the medical records from University Hospital were equally accessible to Cepeda. It was not the State's responsibility to establish a defense for Cepeda. See Flores, 940 S.W.2d at 191.Moreover, with respect to the second requirement under Brady, Cepeda has not shown that the medical records from University Hospital would have been favorable to him. Thus, we overrule Cepeda's second issue.