NO. 07-01-0327 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JUNE 20, 2002

______________________________ FAUSTINO M. DIAZ, JR., APPELLAN T

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2000-434858; HON ORABLE JIM B OB DAR NELL, JUD GE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In a sing le is sue , ap pella nt F aus tinoM. Dia z, J r. a rgu es h is conviction for the felony grade offense of driving while intoxicated m ust be reversed. The punishment , enhanced because of two prior convictions of driving while intoxicated, wasassessed by t he trial court at 35 years incarceration in the Institutional Division of the Departm ent of Crim inal Justice. Disagreeing that reversal is required, we aff irm the j udgme nt of the trial court.1 Thisgeneric mot ion included some item s not relevant to the facts of this case, such

as evidence of the “characte r of the alleged victim.” 2 Appella nt’s com plaint arises out of t he prose cutor’ s alleged fa ilure to discl ose eviden ce in response to an agreed discovery order. A brief discussion of the facts underlying appellant’s prosecution is helpful in discussing the question before us. On the evening of Septem ber 5, 2000, a m otorist on Loop 289 i n Lubbock notified police of a motor vehicle being dri ven erratically. Lubbock Police Officer Michael Shipm an responded to the call, followed the car, and event ually pulled it o ver. Officer Brett Heilman also responded to the call to assist Shipm an. Pr edictably, appellant was the driver of the suspect vehicle. A video cam era in Shipman’ s car recorded the stop , as well as the field sobriety tes t adm inistered by the officers. The officers determ ined appellant was intoxicated and arrested hi m. At the police intake center, a video cam era recorded appell ant’s refusal to subm it to a breath test. B oth videotapes were received into evi dence without obj ection. Appellant sought, and by agreem ent was granted, a p re trial order se eking disco very of 19 classes 1 of i tem s, i nclu ding all e xc ulpa tor y s tat em ents or

oth er e vide ncefavora ble t o appellant and m aterial to the issues of guilt or punishment. After the first trial day, a poli ce off icer invo lved in the case informed the prosecutor the officers had fou nd beer cans in appellant’s vehicle when it was inventoried. The prosecutor inform ed defense counsel of this occurrence that evening. When the proceeding s re sum ed the next day, the prosecutor

told the trial judge about the additional evidence, stating that t he police of ficers3

found “five empt

y beer cans in the car.” Although this inform ation appeared on the w ritten inventor y, that inventory had not been provided to the prosecutorsand it was not included in the offi cers’ reports.
Because the evidence had n ot been supplied earlier to defense counsel, he objected to its adm ission as violative of the discovery m otion which, he argued, “instructed [the State] to perm it me to see any physical evidence that was gathered at the scene or advise meof any physical evidence that w as going to be off

ered into e vidence. ” How ever, he did not request a continuance to give himthe opportunity to investigate the new evidence. The trial court all owed defense counsel to make his objection to the evide nce outside thepre sen ce of th e j ury and rule d th e of

fice rs could testify as to what they saw , but prohibited the introduction of physical evidence. After the defense cross-ex amination, on its redirect exam ination, the State queried one of th e o ff i ce rs ab ou t t he i te ms found during the post-arrest vehicle inventory. He replied:
There were som e – I believe there were beer cans or bot tlesin t he v ehic le and I believe there was a cooler in the trunk of the vehicle when we opened itup . An d I can ’t s ay fo r s ur e i f th er e wa s any alcoholic beverages in the cooler or not. Bu t I be l i ev e i ns i de th e v eh i cl e we fo un d s ome bottles of beer and som e cans of beer.
W hen asked if the bott les or cans were empt y or full, the officer testified that he
cou ld not recall. He also stated t h at the contai ners were not coll ected as evide nce because they were not contraband and “becaus e I didn’t know if he was drinking themor2 Despite the officer’s testim ony that the can did not evidence appellant had drunk beer in the car, in his closing argument, t he prosecutor used that testimony to support the st at emen t “ we know he had been drinking that night.” 4 notin the car,” but that they were “clue s” supportin g the officer ’s conclusion that appellant had been drinking. 2 Appellant now argues1) the tria l court err ed in admittin g the testimony because it was not disclosed in respons e to thediscove ryorder, and 2) the officer’s tes timony w as so diff ere nt f romtheSt ate ’s rep res ent atio n asto what itwould be as to deprive appellant of h is rig ht o f cr

oss -ex am inat ion a nd e ffe ctive as sis tan ce of co uns el.
In s upport of his first proposition, appellant cites the sem inal case of Bra dy v

. Maryland , 373 U.S. 83, 83 S.Ct. 119 4, 10 L.Ed.2d 215 (1963), which established a prosecutor’s duty to disc loseexculp ato ry m ate rial to de fen se coun sel. He also relies on Kyles v. Whitle

y , 514 U .S. 4 19, 115 S.Ct . 1555, 131 L.E d.2d 490(1995), fo r the proposition that prosecutors have an affirmative dut y todiscove r an y ev iden ce f avo rab le to the defense in the poss ession of other governm ent actors, including police.
The firs t qu est ion w

e m ust dec ide is

whether th e testimo ny in question was m aterial and ex culpatory

within the Brady

purview, or was it otherwise within the disco very ord er. Evidence i s ma ter ial if there is a reasonable probability that if the evidence had been disclosed, the outcom e of the proceeding would have been different. U.S. v. Bagley , 473 U.S. 667, 681 -82 , 10 5 S .Ct . 33 75, 87 L .E d.2 d 48 1(1 985 ). I n th is ap pea l, appellant argues the additional evidence falls within the Brady sc ope becaus e it “co uld h avebee n fa vor able5

to a ppellant” tha t the officer could not recall whether th e beer containers we re full or empty. Although he adm its the testim ony that the containers w ere em pt y wo uld not be favora ble to him, he posits that the officer’s inability to rem em ber w ould hav e en able d him to argue “they m ust have been f ull, otherw ise [the officer] would have rem embered empt y beer container s . . . and would have refl ected such a fact in his repor t.” Thus, he reaso ns, the info rmati on s hou ld ha ve b een rev eale d tohimear lier. Ho w eve r, a cce pta nceof t his argument

wou ld require us to s pec ulate asto h ow thej ury w ould view

fac ially am biguous evidence. Because of its ambiguity, t he evidence falls short of the Bagley explication. Moreo ver, the evidence was not actually withheld from the defendant as w as contem plated in Bra dy

. Rather, the evidence w as actually presented in open court to the j ury and appellant wasnotdeprived of the opportunity to argue its effec t to the j ury if he desired to do so.
We m ust

nex t co nsid er w het her

thecha lleng ed m ate rial f ell w ithin the requisites of the discove ry m otio n. I n hisinitial objection to its receipt into evidence, appellant argues his mo tion covered any physic al ev iden ce t hat w ould be in tro duc ed a t tr ial. Howe ver, the mot ion did not actually contain that provision. Supporting his objec tion, appellant cites provisions 7 and 19of the m otion, w hich addre ss “a ll statement s . . . w hich tend to exculpate defendant

or m itiga te p unis hm ent ,” a s well as evidence w hich is “favorable to [the] de fe nd an t a nd mate ri al to gu il t o r t o p un is hmen t. ” As we have discussed above, the evidence of beer containers in the car w as not exculpatory and thus w as not w ithin th e discovery m otion.6

Appellant’s second argum ent is thatthe actual trial testimony by Officer Shipm an was so different from what th e prosecutor described to him that it surprised him and, by doing so, effectivel y den ied him his due process right of cross-exam ination, thereby depriving him of reasonably effective as sistance of trial counsel. However, h is failure to request a continua nce waive d any error. See Will iams v. State, 995 S.W.2d 754, 762 (T ex. App.--San A ntonio 1999, no pet.). By failing to request a continuance to investigate the “new” evidence, appellant denied the trial court an opportunity to correct any error and proceed with the t rial. Vidau rri v. State , 49 S.W.3d 880, 886 ( Te x.Cr im. App . 2 00 1) ; T ex. R. App. P . 33.1. Any error was w aived.
In sum mary , appellant’s issue is overruled and th e ju dg me nt o f th e tr ial c our t is affirmed.
John T. Boyd Chief Justi ce Do not publish.