### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 5 -00 258 -CR

Le if Bot hne , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC-20 05- 9040 54 , HO NORAB LE JO N N. WISSER , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appellant L eif Bothne guilty of m urder , and the district cour t assessed his punishment at thirty -eig ht y ear s’ imprisonment. See Tex. P enal Code A nn. § 19.02 (West 2003). Appellant contends that the State violated his rig hts to due proce ss and due c ourse of law by failing to disc lose exculpatory evidenc e and by display ing a photogr aph of the dece ased on the prosec utor’s t ab l e during the tria l. He also urg es that the trial c ourt violated his constitutional confrontation rig ht by limit ing his c ross-examination o f a State witness. Finding no reve rsible er ror, we aff

irm the conviction.

BACK GR OUND

Appellant fata lly shot Richa rd Midkiff (who was ref

err ed to throug hout the trial as R.J .) during an alterc ation outside the Austin apar tment Midkiff share d with Grac ey Vande rven a

nd2

th e ir in f an t d a u g h te r . T h r o u g h a mi d d le ma n w h o li v e d

in an o th e r a p artm e n t at t

h e s a me c o mp le x, Midkiff had a g ree d to sell a quantity of coc aine t o ap p ell ant and his fr iend Natha n Br own on the afte rnoon of Apr il 5, 2004. But when appellant and Br own arrived at the appointed time, Midkiff, still dealingwith t h e m i d d l em an, reneg ed on the de al. I nformed of Midkiff’s re fusal to sell the

coca ine, appe llant and B rown went to Midkiff’s apartment t o persona lly confr ont him. Befor e doing this, Brown r eturne d to his truck and arme d himself with a pistol “beca use I didn’t know . . . what it was g oing to e scala

te into.” Br own, who at the time of appellant’ s trial was a lso under indictment for murder, te sti fi ed th a t Mi dk if

f o pe ne d h is a

pa rtme nt d oo r i n a

ns we r t o a

pp e lla nt’ s k no c k a nd imm e diate ly “jumped in [appellant’s] face .” Appe llant and Midkiff “bumpe d chests” and bega n to argue. B rown noticed that Midkiff “ was messing with something in his pants.” He said that Midkiff “wa s doing like this in hi s pocket like he had som ething —like he wa s g oing to pull something out.” Midkiff’s hand di d no t leave his po c ke t, h ow e ve r. B ro wn int e rv e ne d in

the argume nt a

nd a sk e d, “ Ar e y ’a ll g oing to f ight or what? ” Midkiff told Br own, “St ay out of this, Bitch.” With that, Brow n pulled out his pistol , handed it to appe llant, and beg an hitting Midkiff. B rown said that a s he and Midk i ff

wre stled, he fe lt a sharp pa in in his ch es t
. Br o wn would later discove r that he ha d been sta bbed

se ve ra l ti me s. As Br own and Midkiff f oug ht, Vander

ven g rabbe d Br own from be hin d an d beg an hitting him. This strugg le was taking pla ce in the wal k wa y in front of Midkiff’ s second- floor apar tment, and at some point Midkiff and B rown fe ll down the stairs onto a landing . Br own testified that w he n he and Mid

kif f r e g a ine d th e ir

fo oti ng , M idk if

f t ur ne d a wa y fr om h im a

nd be g an to wa lk3

up the sta ir s to wa

rd a pp e lla nt, wh o w a s st ill sta

nd ingou tsi de the a

pa rtme nt. B ro wn sa id that he d id

no t se e a pp e lla nt s ho ot M idk if

f, bu t he he ard

the sh ot a s h e wa s e xami nin g his wo un ds

. Appellant did not testify . His defe n s e, as s erte d throug h counsel’s a rg ument and questioning of

the State’s witnesses, w as t h at h e shot Midkiff in self-de fense and in def ense of Br own, and the jury was appropr iately instructed re g ardingthese de fense s. Appare ntly unpersua ded by the def ense, the jury

convicted a

ppellant of murde r.

F AI LU RE TO D ISC LOSE I n h is fi rs t po int of e rr or , a pp e lla nt c on te nd s th a t th e State vio la te d h is d ue pr oc e ss rig hts by failing to disclose m ater ial exculpatory evidenc e. The evidenc e in question conc erne d the kitchen scissors that we re f ound ly ing on the walkwa y outside Midkiff’s apa

rt m en t following the sh oo tin g . I t w a s und ispu ted a t tr ia l th a t th e se sc iss or s w e re us e d to sta b B ro wn duri ngthe fr a c a s. Vande rven te stified that the scissors wer e part of a knife set she kept in the kitchen. She said that Midkiff went to the kitche n immediately befor e answ eringappellant’ s knock on the door, but she claimed that she never saw the scissors in Midkiff’s hand. One of the investig ating office rs testified, howeve r, that Va

nderve n told him and another off icer that she saw Midkiff p i ck up the scissors befor e g oing outside to c onfront appe llant and B rown.

Appellant complains that the State f ailed to di sclose the fac t that another resident of the apa rtment complex who witne s s ed the fig ht, Tony a Alleman, ha d seen V ander ven holding the sc iss or s. Al le man, wh o te sti fi e d at th e tr ia l, s a id t hat V and e rv e n “ wa s co mi ng down [wit h the scissors] in li ke a—motion.” Allema n answe red a ffirmatively whe n as k ed if Vanderve n hadAlleman testi fied that she t old investigators on the day of t he shoot ing that she had se en 1 Va nd e rv e n w iththe sc iss or s. Th is f a c t w a s n ot i n th e or ig ina l of fe ns e re po rt s. 4 he ld t he sc iss or s “ a s y ou mig ht e xpe c t so me bo dy wh o h a s e ith e r s ta bb e d s ome bo dy

or wa s g oin g to stab somebody .”

Def ense counsel voi ced no objection during All eman’ s testimony . Be fore testimony resumed the following day , howeve r, counse l t o ld the court that “ y esterda y there was a

potential violation of Br ady .” See B rady v. M aryland , 373 U.S. 83 (1963). C ounsel complained that the offe nse re ports disclosed to the def ense pr ior to trial had conta ined no m ention of All eman having seen V ander

ven with the scissors, a

nd that the defense had first hear d of it when Allema n testified. The prose cutor e x plained that she f irst learne d that Alleman had se en Va nderve n holding the sc isso rs when Allema

n mentioned this fact dur ing a telephone c onver s ati on one month befor e the tria l beg an. The prose cutor immediately sent an off

icer t o co n d u ct a se cond intervie w of Allema n, 1 and the of fice r pre pare d a supplementa l report dated Marc h 1, 2005 (appe llant’s trial beg an on Mar ch 28). On Mar ch 15, the prosec utor sent defe nse counsel a letter, a dmitted in evidence, that did not mention Alleman or th e o ff i ce r’ s supplemental re port, but did tell counsel, “I f there are any other ite ms that y ou

ne e d, ple a se le t me kn ow .” Th e pr osecut or to ld the c ourt that th is “ wa s b a sic a lly inviting [counsel] t o come a nd g et discover

y .” At the conclusion of the discussion, the trial cour t said that whethe r or not the information was exculpatory , “the defe nse is now awa re of it and have plenty of time to do whateve r they need to mee t or to utili ze it.” Under Brady , a

pr os e c uto r h a s an a ff

ir ma tiv e du ty

to d isclos e any

ma te ri a l, exculpatory

evidenc e. Id . at 87. Evidence is e x culpatory if it tends to ex cuse or clea r the de fenda

ntDef ense c ounsel discussed self-defe nse and defe nse of third persons during jury selec tion. 2 Duri nghis op e nin g state me nt, c ouns e l to ld t he jur y , “ What’ s g oin g to b e dis po sit ive of the c a se is the fac t that he had the rig ht to do this beca use R.J . was stabbingNathan B rown.” Counsel adduce d testimony from the investig ating police off icer s that the s cissors i n question wer e capable of causing death or seri o u s bodily

injury , and that the of

fice rs would believe themselves justified in using deadly forc e if they

wer e attac ked by

a per son wielding the scissors or sa w another office r being attacke d in that manner. 5 from g uilt. Ri le

yv . S tat e , 953 S.W .2d 354, 359 (Tex. App.—Austin 1997, pet. ref ’d). Exculpatory evidenc e also include s impeachme nt evidence

. United States v. Bagley , 473 U.S. 667, 676 (1985). Evidence is materia l if there is a reasonable probability that, had the evidenc e bee n disclosed to the defe nse, the outcome of the proc eedingwould have be en diffe rent. Id . at 682. Appellant a rg ues that the e vid e nc e tha

t V and e rv e n w a s se e n h old ingthe sc iss or s and makin g sta bb ingmot ion s te nd e d to

su pp or t hi s se lf -d e fe ns e and

de fe ns e of

thi rd pa rt y c la ims and , h a d it

be e n time ly dis c los e d, wo uld have be en an e ffe ctive tool during his c ross-examination of Vande rven. Appellant urg es that there is a re a so na

ble pr ob a bil ity that the ou tc ome of his tr ia l wo uld have be e n dif fe re nt ha d the Sta te timely disclosed what Allema

n had see n. Whe n e xcu lpator

y e vid e nc e is n ot d isc los e d unti l a ft er tr ia l ha s b e g un , th e iss ue is whether the tardy

disclosure pre

judiced the de fense

. Litt le v . S tat e , 991 S.W. 2d

86 4, 86 6 ( Te x. Cr im. App. 1999). I f the e vidence was turne d over in tim e for the def ense to make use of it, a Brady claim will fail. Id

. I n the i nstant case , appellant knew before his trial beg an that B rown ha d been stabbed duringhis strugg le with Midkiff, that the scissors, with B rown’s DNA on them, had bee n found lying ne ar the scene of the shooting, and that Va nderve n had bee n seen hitting Br own. B ased on this evidence , appellant ha d formula t ed his justi fication defense and adva nced that defe nse at tr ia l. I n other wor ds, this is not a ca se in which the State f ailed to timely

disclose the only

evidenc e 26

supporting a viable defe nsive theory

. Even befor e Alleman te stified, there was e vidence supporting appellant’ s claim t hat he shot Midkiff in defe nse of himself and Brown, a nd Alleman’s testimony

me re ly a dd e d f ur the r w e ig ht t o th a t de fe ns e . A lle man’ s te sti mony may have c ome a s a surp ri se to the def ense, but it did not prejudice the defense. To the contra ry , it supported appellant’ s assertion that the shooting w as justified.

Appellant complains that beca use Alleman te stified afte r Va nderve n, he wa s not

a ble to u se Al le man’ s in fo rm a tio n to imp e a c h V and e rv e n d ur ingc ro ss- e xam in a tio n. B ut d e fe ns e

c ouns e l ha d a sk e d V and e rv e n if sh e stab bed Brown wi th t he sc iss or s, and

sh e ha d d e nie d it

. Alleman’s subsequent testimony thus did serve to impea ch Vande rven. Had defen s e c o u n s el believed that it was nece ssary under the circ umstances to conf ront Vande rven w ith Alleman’s

s t at em en t , h e c o u l d

h av e a s k edt o re ca l l h er

fo r f u rt h er qu es t i o n i n g. We h old tha t in so fa r a s th e State wa s g uil ty of havin g fa ile d to tim e ly

dis c los e Alleman’s e x culpatory

information, the outcome o f t h e trial was not effe cted a nd the er ror wa s harmless be y ond a re asonable doubt. See Tex. R. App. P

. 44.2(a)

. Point of error one is overrule d.

LIM ITA TIO N O F CR OSS- EX AM IN AT ION Appellant conte nds that the trial cour t violated his Si x th Amendment conf rontation rig ht by improperly limit ing his cross-e x amination of Vanderve n. Specifica lly , appellant a rg ues that he wa s not allowed to adequately cross-e x amine Vanderve n reg ardingthe pre sence , at the time of the shooting, of

a third adult, Thadde us Smi th, in the apar tment she share d with Midkiff. A defen d an t ’s confr ontation rig ht includes the rig ht to conduct all leg ally proper

cross-e x amination desig ned t o expose a witness’s testimonial motivations

. Lag ro ne v . S tat e ,7

942 S.W .2d 602, 613 (Tex. Crim. App. 1997). Abrog ation of a defe ndant’s rig ht to c ross-examine the wi tne sse s a g a ins t hi m is a de nia l of due pro cess of

law u nd e r t he F ourt e e nth

Am e ndme nt. Pointer v. Texas , 3 80 U. S. 4 00 , 4 05 (1 96 5) ; Me nd e z v . S tat e , 56 S.W .3d 880, 892 (T e x. Ap p. —A us tin

20 01 , p e t. r e f’ d) . A tr ia l c ourt , h ow e ve r, ha s b ro a d d isc re tio n to imp os e

rea sonable limit s on cross-e x amination to a void hara ssment, prejudice , confusion of issues, a nd the injection of cumulative or collater al evidenc e. Lagrone , 942 S.W .2d at 613. A trial c ourt exceeds its dis c re tion o nly

wh e n it pr oh ibi ts a

de fe nd ant f

ro m e ng a g ingin o the rw ise a pp ro pr ia te c ro ssexamination designe d to show a prototy pical for m of bias on the par

t of the witness. Id

. Vande rven te stified during her dire ct ex amination by the prosec utor that except for their infant son, she a

nd Midkiff wer e alone in their apa rtment when a

ppellant and Br own ar

rived. L ater in her testimony , Vande rven state d that a man named Thadde us Smi th came to the a partment afte r the shooting and helpe d her c are for Midkiff until the EMS t echnic ians arr ived. Without further elabor ation, Vande rven a nswere d “y es” w hen aske d by the prosec utor if she kne w Smith “before this happened.”

During cross-e x amin a

ti o n , V a n d e r v e n te s ti f ie d that Smit h was Midkiff’ s case worke r. She said that Smit h had bee n at the apa rtment befor e the shooting , but that he had lef t the apar tment befor e appe ll an t and B rown a rrived. V ander

ven soon beg an to alter

her story , howeve r, say

ing first that Smit h was in the apar tment w hen appellant knocked at the door but the n l ef t , an d t h en admitting that Smith was in the apar tment during the e n t i re incident. Vande rven a lso admitted that she had de liberate ly

failed to mention Smith’s presenc e in her statem ents to the police a nd8

pr os e c uto rs . A sk e d b y

de fe ns e c ouns e l wh y

sh e ha d d on e thi s, Va

nd e rv e n r e pli e d, “ [H]e a sk e d me not to say any thing.” At this point , defe nse counse l approa ched the bench a nd informed the c ourt that he believed that Smi th had bee n at Midki ff ’s ap artment to purc hase dr ug s. The jury

was e x cused and counse l was per

mitted to voir dire Va n d erve n on this iss ue. Va nderve n said that Smit h was Midkiff’s juvenile c asew orker and h ad vis ited the apa

rtment on sever al occ asions. She said that Midkiff had told her that Smit h used cocaine, but she denied any knowledg e of w hether Midkiff had supplied Smit h with drug s. She also denied e ver se eing Smit h use drug s. She said that Smit h had come to the apar

tment be cause he and Midkiff wer e g oing to g o somewher e tog ether ; she claimed not to know where they wer e going or what they wer e going to do. Finally , she said that she did not kn owwh y

Smith h a d a sk e d he r no t to r e ve a l th a t he ha d b e e n p re se nt. She ha d c omp lie d w ithhis reque st beca

use she wa s “sca

red.” At the conc lusion of t he voir dire , defe nse counse l urg ed that they should be allowed to c ross-examine Vande rven befor e the jury conce rning Smit h’s re lationship with Mi dkiff and the

r e a s o nf o r S m i t h b e i n g a tt h e a

p art m e n to nt h e a f

t e r n o o no f t h e s h o o t i n g . T h e c o u rtd i s a g r e e d

. It

ru le d th a t Smith’ s re a so n for be ing a t the a pa rtme nt w a s a

c oll a te ra l matte r i rr e le va

nt t o th e of

fe ns e

on tr ia l, n ote d th a t V and e rv e n did no t “ a pp e ar to be that kn ow le dg e a ble a bo ut w hat th e tw o p e op le

wer e doing any

way ,” and said that there was no rea son “to g o into some fishing expedition.” The court rule d, howeve r, that the de fense would be permitted to question Vanderve n reg ardingher pr ior mis state me nts and

wh y sh e ha d ma de the m:9 Wel l, I thi nk y ou c an ask he r. I me an, did y ou sa y X o nc e up on

a tim e ? Ye s. And, in fac t, Y is true. Yes. Why did y ou say

that? And go into that motivation. That’s a relatively limit ed amount of questioning, but I don’t think that’ s, y ou know, a 25-minute inquiry

into the relationship betwee n the decease d and thi s Mr. Smit h. Now, whe n Mr. Smith is called—I assume he’ ll be called a s a witness—then it may be c ome re le va

nt, bu t I do n’ t thi nk

it’ s r e le va

nt t hr ou g h th is w itn e ss. . . . B ut I sti ll a m c on c e rn e d un de r Rul e 40 3 a bo ut thi s tr ia l a ll of a su dd e n ve e ri ng of f here in to some ty pe of tria l about what Mr. Smit h was doing with the dece ased, be cause Idon’t thi nk that is pa rt ic ula rl y re le va nt.

Af t e r t h e j u r y r e tu r n e d an d V an d e r v e n ’ s c r o s s - e xam i n a t i o nr e s u m e d , s h e a g a in admitted that her ear lier testimony had been false and that Smit h had bee n prese nt at the apa rtment thr ou g ho ut t

he e ve nts c ulm inatin g in the sh oo tin g . She a dd e d th a t Smi th a nd Mid kif f w e re fr ie nd s, althoug h Smit h was c onsiderably older than Midkiff. She a g ree d with counsel’s sug g estion that “somehow or

another something dr ew them together.” D uring redire ct examination by the pr os e c uto r, Va

nd erve n sai d that

Smith w a s a

c a se wo rk e r w ho vis ite d th e a pa rtme nt f ro m ti me to time, that he was not on a

n officia l visit on the afternoon in question, and that she di d not know what he wa s d oin g the re that da y . F ina lly , d

ur ing fu rt he r cr os s- e xami natio n, thi s exch ang e wi th d e fe ns e counsel took plac e: Q Okay . But [Smi th] wasn’t—he was n ’t at y our apa rtment in a prof

essional basis, was he ? A No. Q Okay . And he wa sn’t R.J .’s ca seworke r, wa s he? A At the time? Q Rig ht. A No.10

Q And, in fac t, what he wa s on that day —or y our belief

was—is that he wa s a—he w as a buy er. A No. No. Q Th a t’ s w hat y ou

tho ug ht. A No , I

did no t sa y that. Q What di d y ou

thi nk he wa s? A They

hung out. Imean, we play ed pool. They did t h i n gs . I t wasn’t just—y ou’re making R.J . sound like he’s just a big drug deale r. Q I ’m

no t a sk ingthat. I ’m

a sk ingwh y

a man wa s th e re a t y our a pa rtme nt i n that— A Idon’t know. They wer e—they

hung out. May

be they wer e g oing to ha

ng out. Idon’t know. I

told y ou that Idon’t know. Q Did y ou not testify ear lier outside the pre sen ce o f t h e jury that y our impression was or your belief at the time—y our perce p t i on was that they we re g oin g to d o a

de a l? A M y

b el i ef i s m y o p i n i o n . Id o n ’t kn o w w h at t h ey we re d o i n g. Q Well, that’s what I ’m asking y ou: What was y our pre sent-sense impression wh e n h e wa s at th e a

pa rtme nt? I t w a s th a t th e y

we re g oin g to d o a

de a l. A That day ? No. Iwould assume they ’re probably —that he would have done it in the past or would have done it that day ? No, I don’t think that they wer e d o i n g a d ea l

. T h ey

we re l ea v i n g.
As the re cord makes cle ar, a ppellant was pe rmitted t o cross-e x amine Va nderve n reg ardingSmit h’s re ason for b ei n g at the apa rtment on the af

ternoon of the shooting de spite the tr ia l court ’s ru lin g to the c on tr ary . Couns e l que sti on e d V and e rv e n r e g ard ingSmit h’ s r e la tio ns hip wi th M idk if

f a nd a sk e d h e r i f S mith h a d c ome to t he a pa rtme nt to purc ha se dr

ug s. Mo re ov e r, Smith11

wa s late r c a lle d a s a

wi tne ss a

nd a pp e lla nt w a s p e rm itt e d to c ro ss- e xami ne him a bo ut t he same matters. Smit h testified that he had come to the apar tment to cong ratulate Midkiff on his succe ssful completion of a tra ining pr og ram. He denied be ing a user of unlawful drug s. He a lso denied telling Va nd e rv e n to ke e p h is p re se nc e a t th e a pa rtme nt a se c re t. Appellant’s contention that his cross-e x amination of Va nderve n was unduly

limit ed is w ithout support in the rec ord. All of the matter s he soug ht to ex plore duringcross-e x amination, he wa s allowed to explore. Point of error two is overrule d.

DE CE AS E D’ S PH O T O GR APH I n his last two points of error , which he a rg ues tog ether , appellant c ontends that the t r i a l c o u rtv i o l a t e d

h i s d u e p r o c e s s an d d

u e c o u r s e o f l aw r i g h t s b y p e r m i t t i n g t h e S t a t e t o d i s p l a y a photogr aph of Midkiff at the prosec utor’s table.

On the third day

of testimony , following the lunch re cess, c ounsel objecte d that the State “ ha s pu t State ’s Exhi bit 74 , wh ic h is a pic tur e of the vic tim —a nd the y ’v e placed it on the ir

c ouns e l ta ble . I t’ s p ro pp e d up a g a ins t a c omp ute r mon ito r and it’ s fa c ing the jur y . Th is i s e xtre me ly prejudicia l, and the def

ense w ould ask that it be remove d from the table .” The prosec utor responde d, “I think we have a rig ht to have the jury see w hat this victim l ooked l i k e b ef o re the defe ndant g ot t hr ou g h w ith him .” Th e tr ia l court no te d for the re c or d tha t “th e State ha s an ei g ht by te n p ho to of the de cea sed display ed on the c ounsel table. The Co u rt ’s go i n g to decline to sustain the objection.” The court a dded, “I f anyone has a ny case law on this matter, I ’d be happy to reviewit.” Appar ently , the photogr aph rema ined on display throug hout the rema inder of the trial, which la sted

ano the r t wo da y s.12 The photo g r a

p h in qu e s ti o n a

p p e ar s to b e a s n a

p s h o t. A s o r ig in a ll y o f

f e r e d by the State, the photogr aph pictured Midkiff holding his infa nt son. At appellant’ s reque st, the photogr aph

was c ropped to re move the child fr om the picture, and the ex hibit was then a dmitted without further objection. Appellant c ites no authority holding that the display

of a phot og raphic exhibi t such as this is error, much le ss error of constitutional dimension. T he State undoubtedly hoped that the photogr aph would g ener ate sy mpathy for the de cea sed, but there is no evidenc e that the di splay of the ph oto g ra

ph inf lame d the min ds of the jur y or oth e rw ise un fa ir ly

pr e jud ic e d a pp e lla nt. No a bu se of discre tion is shown, and points of error three and four

are overr uled. The judg ment of convic tion is affirmed.

______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____ W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Patter son and Pemberton Affir med Filed: Apr il 30, 2008 Do No t Pu

bli sh