## In The **Court of Appeals Seventh District of Texas at Amarillo** 

No. 07

- 12

- 00290

- CR

JOSE PERALES, APPELL ANT
V. THE STATE OF TEXAS, APPELLEE On Appeal from the 147th District Court Travis County, Texas Trial Court No. D

- 1

- DC

- 12

- 904042, Honorable Cliffor d Brown, Presiding 

### September 5 , 2013 MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Jose Perales appeals his conviction for aggravated assault. His sole issue concerns the trial court's refusal to grant him a mistrial due to a purported Brady 1
violation . We affirm. **Background** The dispute evolved around a conversation or interview conduct ed by the investigating detective. He was interview ing the mother (Suzie Rodr iguez) of one of the

1 Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194,10 L.Ed.2d 215 (1963).2 potential witness es to the assault. 2 That interview was re corded and transferred on to a “data disk.” Furthermore, the recording allegedly contained a statement by the detective informing Ms. Rodriguez that it was not his intent to prosecute her son. The statement was not included in the detective ’ s written report. And, appellant ’ s trial counsel represented that he had not been aware of that conver sation or alleged
utterance until the trial had begun and the detective was under going cross

- examination. Consequently, appellant argued that the evidence was Brady material withheld by the State . This resulted in him orally moving for a continuance and a mistrial. A several

hour postponement in the trial was afforded counsel so th at he could communicate wi th Rodriguez . However, a mistrial was denied him. **Analysis 3** 
Whether a trial court errs in denying a mistrial depends on whether it abused its discretion. Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App.1999). It abuses its d iscretion when its decision falls outside the zone of reasonable disagreement. Murray v. State , 172 S.W.3d 782 (Tex. App.

– Amarillo 2005, no pet.)

. Next, per Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) , the State is obligated to di sc lose to a defendant exculpatory and impeaching evidence in i ts possession. Brady, 373 U.S. at 87, 83 S.Ct. 1194 ; Pena v. State , 353 S.W.3d 797,

2 The assault consisted of appellant, while driving a vehicle, hitting a p erson riding a bike and failing to stop thereafter. At least two other persons were in the car, one of whom was the son of Susie Rodriguez.

3 To the extent that appellant may be contending that the trial court erred in overruling his motion for continuance , we note that the request was orally made. Being so, it did not comport with the applicable rules of procedure requiring a written motion containing factual allegations attested to by either the State or the defendant. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 29 .03 (West 2006) (specifying the requirements for a motion to continue in a criminal case). Thus, appellant failed to take the steps necessary to perfect the matter for review. Dewberry v. State, 4 S.W.3d 735, 755

- 56 (Tex. Crim. App. 1999) (stating that n othing is preserved for review by an oral motion for continuance).3 810 (Tex. Crim. App. 2011). However, t he burden lies with the accused or complainant to prove that the duty was not met. Pitman v. State , 372 S.W.3d 261, 264 (Tex. App.

– Fort Worth 2012, pet. ref’d) . Thi s requires him to establish that 1) the State failed to disclose the pertinent evidence, 2) the undisclosed data is exculpatory or susceptible to be ing used as impea chment evidence favorable to the accused , and 3) the evidence is material. Pena v. State , 353 S.W.3d at 809. Brady , however, does not require the State to independently s eek out exculpatory evidence on behalf of the accused or to furnish him with exculpatory or mitigating evidence that is fully ac cessible to him from other sources. Harm v. State , 183 S.W.3d 403, 407 (Tex. Crim. App. 2006). Application of these rules leads us to reject appellant ’ s contention for several reasons. First, w e have not been cited to the location with in the appellate record of the “data disk” in question. Nor did our review uncover the location of the disk or a transcription of the interview in question. Without either the disk or a transcription of its
conte nts being admitted or otherwise being made a part of the record, we cannot accurately assess its tenor. In other words, it is rather difficult to say whether evidence constitutes Brady material if we cannot see what that evidence is. Second, counsel for the State represented to the trial court: The State

- - at this time, I am making the representation as an officer of the Court that I personally had that data disk available for counsel to review and specifically

– because in that particular data disk that I reviewed I do not recall Ms. Rodriguez ’ s statement at all. I do not recall reviewing it. But specifically in that data disk we also have David Martinez ’ s second audiotaped conversation, and so that specifically was turned over to Mr. Wannamaker as part of the discovery process. I didn ’ t sit down with him and have him

– I didn ’ t sit down with him the entire time that he viewed it, but that data disk was tu rned over to him to review. And if he missed it like I did, that ’ s completely different f rom saying we were hiding something from them.4 * * * And, Judge, again, just to make sure the record is clear, he was given that disk to review as well. Defense counsel responded with the following: When I went over to the DA's office **, I requeste d an opp**  **ortunity to hear and see disks.**  **They were made available to me** and then I sat at the little cubby station and watched videos. At no time was I given an audiotape or told that there was an audiotape in there of Susie. I had no reason to be looking for it because it's not in the reports. We have e

- mail traffic, we have conversations, we have it on the record my requests for Brady and Giglio information and they have been very forthcoming about the immunity and the promises made to Fat Face, but no t to the Rodriguezes. [ Emphasis added ]

. This exchange is quite pertinent because of its relationship to the first element of the burden appellant had to satisfy. Again, it was his obligation to prove that the State withheld the evidence. Given the rat her factual nature of that element , its establishment depended upon the presence of evidence. That is, the trial court could hardly find that the State did not disclose the data without some evidence showing that the data was not disclose d . So, assuming arguendo that unsworn comments from an attorney are evidence, Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex. App.

– Austin 1990, no writ) (stating that unsworn statements f rom counsel generally are not evidence), the trial court had before it a scen ario likening t o what has come to be known as “ he said, she said .” And, most importantly, it was free to believe the State's attorney in rejecting the demand for a mistrial. Simply put, it had evidence before it upon which it could have decided that the alleged Brady material was indeed disclosed b y the State. And , we must defer to the trial court ' s resolution of fact issues. See Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (stating that when issues involve mixed questions5 of law and fact, we review the issues of law de novo but defer to the trial court's determination of historical fact ). Third, the foregoing exchange between the State's attorney and defense counsel is also telling for one other reason. As indicated by that portion of the defense counsel's utterance, he acknowledged that he received disks from the S tate. That he did not receive “audiotapes” as well is irrelevant since the con versation in question was on a

“ data disk

. ” (Emphasis added). Thus, he had the means to uncover t he evidence about which he complains, and Brady is not violated whe n the exculpatory or mitigating evide nce is fully accessible to appellant from other sources

. Harm v. State , 183 S.W.3d
at 407. Nor is it of import that the State supposedly neglected to d irect him to the dialogue between the investigating officer and Suzie. Again, the State's burden is to release Brady ma terial to the defendant. We know of no authority obligating the prosecutor to counsel the defendant or his attorney about what within t he stack of material provided may or may not be interpreted in some way or another as Brady material. Nor did appellant cite us to any such case. 4 Given that the record before us contained sufficient information upon which the trial court could have hel d that appellant failed to establish the first element of a Brady violation, we cannot say that the refusal to grant a mistrial fell outside the zone of reasonable disagreement. Therefore, the decision was not an instance of abu sed discretion.

4 See Taylor v. State, 93 S.W.3d 487 (Tex. App.

– Texarkana 2002, pet ref’d) (finding that t he government is not required to facilitate the compilation of exculpatory material that could hav e been compiled by the defense .)6 A ppella nt's issue is overruled, and the judgment is affirmed.

Brian Quinn Chief Justice Do not publish.