### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00370- CR

Ex parte Danish S heikh

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 299 TH JUDICI AL DISTRICT NO. D-1 -DC- 05- 3011 71, TH E H ONO RAB LE CHARLES F . B AIRD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A j u ry convicted Danish Sheikh of ag g rava ted assault with a deadly wea pon. See Tex. Pen al C o d e. An n . § 22.02 (West 2011). After the return of the g uilty verdic t, the State and Sheikh rea ched an ag ree ment as to punishment. Pursuant to that ag ree ment, the trial court sentenc ed Sheikh to serve ten y ear s in the Texas Depa rtment of Criminal J ustice, but suspended imposit ion of the s entenc e and place d him on comm u n ity supervision for a period of five y ear s. See Tex. Code Crim. Proc. Ann. art. 42.12 ( West S upp. 2012).

Approxim ately one y ear later, Sheikh f iled an application for writ of habea s corpus pursuant to Article 11.072 of the Code of Criminal Procedur e asser ting four g rounds for relief

. See id. art. 11.072, § 8 (West 2 0 0 5 ). S u b s equent to a four- day evidentiar y hear ing, Sheikh filed a supplemental application asser ting a fifth g round for relief

. The district court g rante d habea s relief

on two of the five g rounds upon which Sheikh soug ht relief and vacated the judgme nt of conviction.

The State of Texas now appea ls the district c ourt’s order g ranting habea s relief and

vacating Sheikh’s judgme nt of conviction. See id. , art. 44.01(k) (West Supp. 2012); Tex. R. App.P. 31. Sheikh cross appea ls the court’s denial of habea s relief on the fourth g round for relief asser ted in his orig inal application. See id. art. 11.072, § 8. For the rea sons that fol l o w, we re v er s e and rende r in part, a

nd aff irm in part.

BACK GR OUND

I. F acts of the Case I n September of 2003, Be th Bla ney , a student at the University of Texas, beg an dating Danish Sheikh, a fellow student and one of the residents in her dorm. They dated for approximately

one y ear and nine months befor e Be th ended their difficult and sometimes violent re l at i o n s hip. Sheikh, howeve r, was not r eady to a cce pt the end of their rela tionship. His behavior towards Be th

esca lated, culminating in a serie s of assaults one w eeke nd in May of 2005. On the evening of Fr iday , May 13, 2005, Sheikh forc ed his way into Be th’s dorm
room, ref using to leave or allo w h er t o l ea v e or call for help. He g rabbe d her, pushed her, and knocked her down to keep her from t h e d o o r. He was irrational and scre aming at her as he confr onted her about their rela tionship. He kept her up most of the night to discuss their rela tionship and why she neede d to g ive him another chanc e, even though Be th repe atedly asked him to leave so she could study for a final exam she had the following day

. The next morning , when Be th ag ain tried
to make Sheikh leave , he responde d with more violence: pushing her, hitting her, kicking her, and
eventua lly choking her as he pushed her ag ainst the wall of the bathroom in her dorm room. When later rec ounting the strang ulation inc ident to the jury , Be th de scribed f eeling pain, being unable to bre at h e n o rm ally , becoming dizz y , and losing consciousness. She also told the jury that upon

2waking up on the bathroom floor, she could not immediately reme mber what had happene d and

discovere d that she had ur inated on her self during the strang ulation.

After the assault, Sheikh apolog ized to Be th and chang ed her clothes. He then helped her to her futon bed so she could lie down. His helpful attitude did not last, howeve r, as Sheikh responde d violently to a comment Be th mad e b y again choking her. This choking episode, fortunate ly , did not cause Be th to pass out, althoug h her extremiti es felt tingly

. L ater that same day , while the two wer e still in Be th’s dorm room, Sheikh once ag ain beca me upset with Be th and once ag ain choked her, this time pushing her down on the bed and wra pping an empty pillow case around her ne ck. Sheikh stopped this strang ulation before Be th lost consciousness.

Be cause of Sheikh’s assaults ag ainst her and ref usal to allow her to leave , Be th was unable to study for or take the final exam she had schedule d. Sheikh concoc ted an elabor ate scheme
to excuse her absenc e and cover his abuse. He took h er t o h er classroom and, while Be th waited outside, explained to her profe ssor that Be th had been in a car wre ck. Then, to corr oborate this lie, he took Be th to the hospital wher e, in Sheikh’s prese nce, she told the ER doctor, falsely , that she had been in a minor car

acc ident. After leaving the hospital, Sheikh drove Be th to a local diner wher e they had dinner. I t was now the evening of Saturday , May 14, 2005. Upon leaving the restaur ant, Sheikh drove them
to the parking g ara g e adja ce n t to his apar tment complex. After he parke d the car in his assig ned parking space , the two rema ined in the car while Sheikh attempted y et ag ain to convince Be th to g ive him and their rela tionship another chanc e. When Be th ref used, Sheikh once ag ain rea cted violently , g rabbing her and hitting her repe atedly while they wer e inside the car . Sheikh then drove the car out

3of hi s parking spot and sped towa rds the top level of

the par king g ara g e. When he stopped on the top level, Be th ran from the car . Sheikh pursued her and tackled her, causing her to fall fac e down on the ce ment floor. He rolled B eth over , straddled he r, and, onc e ag ain, beg an strang ling he r. I n descr ibing this strang ulation to the jury , Be th indicated that this was the harde st Sheikh had strang led her. She testified that he was squeezing her neck as hard as he could and also pushing down ag ainst her neck, causing her a lot of pain. She descr ibed being unable to brea the, fee ling wea k and dizz y , and getting blurry vision. Once ag ain, S heikh s t ra n gled Beth until she l ost consciousness. When Be th awoke on the ceme nt floor of the parking g ara g e, Sheikh was still straddling her and she could
not fee l any part of her body

. She was unable to speak or move at all. She could see that Sheikh was slapping her fac e and hear him demanding that she wake up, b u t she could not fee l his hand striking he r. Sheikh then drag g ed Be th’s body back to the car and put her inside it. He drove back down to his parking spot, removing her just befor e he parke d in his space . He then beg an forc efully

escor ting Be th, who was having difficulty walking , to his apar tment. As he was pulling her towards his apar tment, his roommate arr i v ed

. When Sheikh’s roommate approa ched them, Be th ducked behind him attempting to seek help from him. The roommate, unfortunate ly , did not want to become involved. He did, howe ver, eventua lly convince Sheikh to g o into their apar tment a nd let Be th go back to her dorm. When Sheikh went inside with his roommate, Be th hid behind a car in the parking g ara g e and c alled a f

riend for help. The friend picked Be th up and took her to the apar tment of another friend wher e other friends joined them. Be th’s friends observe d her injuries—multipl e bruises on her neck consistent

4with being strang led—and ur g ed her to repor t the i ncident. Finally , in the early morning hours of Sunday , May 15, 2005, Be th c alled her mother, who lived in Conroe, Texas, as well as the police. Be th’s mother and stepf

ather trave led to Austin to pick her up. Be th’s mom, a nurse, felt t hat s he neede d to g o to the hos pital and took her to Huntsville Memorial Ho spital wher e she worke d. At
t h e h o spital, Be th was treated in the emerg ency room by Dr. Michael Edwards who obs erve d an d documented he r injuries.

The next morning , Monday , May 16, 2005, Be th returne d to Austin and met with law enfor ceme nt office rs of the Austin Police Depa rtment’s Domestic Violence Unit. She met with two detec tives as well as a

victim services c ounselor who a ll saw her injurie s.

II. P roce dural B ackground A. Trial Proceedings

I n September 2006, a t the conclusion of a five-da y trial, a jury convicted Sheikh of ag g rava ted assault with a deadly wea pon for the strang ulation assault he committed ag ainst Be th on May 14, 2005 in the parking g ara g e. The jury also returne d an aff irmative deadly wea

pon finding , finding that Sheikh used his hands as a deadly wea pon during the course of committing the assault. Subsequent to the return of the g uilty verdic t, the State and Sh ei k h re ac h ed an ag ree ment as to punishment. Pursuant to the punishment ag ree ment, and with the State’s consent, Sheik withdrew his e lection to ha

ve the jury assess punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West Supp. 2012) (upon return of a finding g uilty , the defe ndant may , wi t h t h e consent of the attorney for the State, chang e his elec tion of who assesses punishment). Sheikh also waived his rig ht
to appea l. The State ag ree d to rec ommend a suspended sentenc e. The neg otiated punishment

5ag ree ment also included various ag reed u p o n co mmunity supervision conditions. Whil e not

specific ally articula ted as part of the ag ree ment, the rec ord ref lects the understanding that the court would omit the j ury ’s deadly wea pon finding

. I n acc ordanc e with the ter ms of t he agr eeme nt, the trial court assessed Sheikh’s punishment at confine ment in the Texas Depa r tm e n t o f Cr iminal J ustice for ten y ear s but suspended the sentenc e and place d Sheikh on community supervision for a period of five y ear s.

B. Habeas Procee dings

I n October 2007, just over one y ear afte r being place d on community supervision, Sheikh filed an a

pplication for wr it of habea s corpus pursuant to article 11.072 of the Texas Code of C riminal Procedure, asserting four g rounds for relief

. The trial court conducted an evidentiar y hear ing over four day s in J une and J uly of 2009. Subsequent to the hear ing, in October 2009, Sheikh filed a second supplemental application for writ of habea s corpus asser ting a fifth g round for relief

. 1 I n May 2010, the district court filed an order which included the co u rt ’s finding s of fac t and conclusions of law. The order g rante d habea s corpus relief on the first and fifth g rounds asser ted in Sheikh’s applications, denied relief as to the other three g rounds, and vacated Sheikh’s judgme nt of conviction. B oth the State and Sheikh filed timely notices of a

ppeal.

Appar ently , Sheikh filed a first supplemental application in November 2007 that simply 1 expanded on the four g rounds raised in the orig inal application. This first supplemental application is not contained in the re cord on a ppeal. 6C. Groun ds for Habeas Corpus R elief I n his orig inal application for writ of habea s corpus, Sheikh asser ted four g rounds for

re l i ef. Sheikh asser

ted a fifth g round in his supplemental application, filed subsequent t o t h e evidentiar y hear ing. T he g rounds re levant to this appea l are the first, four th, and fifth g rounds for habea s relief

. I n his first g round for relief , Sheikh alleg ed that the State knowing ly used the perjure d testimony of Dr. Michae l Edwar ds, the trea ting phy sician in the hos p i t al emer g ency room wher e Be th went for medical car e afte r the assault. Sheikh complained about five differ ent statements Dr. Edwar ds made during the course of his testimony at trial. The habea s court found that three of the complained- of statements wer e false or misleading

. The habea s court further found that only one statement was materia l. Th is statement rela ted to the doctor’s testimony about having serve d as chief of the Be n Taub emer g ency room, when in fac t Dr. Edwar ds serve d as the chief surg ical resident of the emerg ency cente r. The habeas court found t hat t his statement was favora ble and materia l and g rante d relief

on this first gr ound. I n his fourth g round for relief , Sheikh complained that the trial court failed to follow the punishment ag ree ment and there fore , his waiver o f t h e ri ght to appea l—predica ted upon the ag ree ment—was invalid. Consequently , Sheikh a rg ued, he wa s entitled to an out-of-time a ppeal. Sheik urg ed that the judgme nt of convic t i o n ref lects the wrong date for the date of offe nse and incorre ctly states that he pled g uilty instead of r eciting that he pled not g uilty but w as found g uilty by a jury

. The habea s court found that the judgme nt was inacc urate as t o t hese two items and conclude d that relief was available throug h a nunc pro tunc judgme nt. The habea s court further

7found that: (1) the ag ree d upon punishment was imposed by the trial court—including the omission

of a deadly wea

pon finding that allowed Sheikh to be e ligible f or community

supervision; (2) the

2 trial court’s oral pronounce ment of sentenc e was entirely consistent with the punishment ag ree ment; (3) Sheikh was not harme d by the judgme nt g ranting community supervision; and (4) the err oneous judgme nt did not contribute to Sheikh’s conviction or punishment. The habea s court conclude d that Sheikh failed to meet his burden of proving fac ts entitling him to relief and d en i ed habea s corpus relief as to this fourth g round. I n his fifth supplemental g round for relief , Sheik asser

ted that the Stat e fa i l ed to disclose impeachme nt evidenc e to the defe nse: the curr iculum vitae, or CV, of Dr. Edwar ds. At the beg inning of his cross examination of Dr. Edwar ds, defe nse counsel soug ht a copy of Dr. Edwar ds’s CV. When a sked about the CV, Dr. Edwar ds indicated that he did not have a copy of his CV with him but explained tha

t he had a copy at his hotel that could be retrie ved. The State did not have a 3 copy of t h e C V b u t o ffered to fac ilitate obtaining a copy for the defe nse. After some discussion about re trieving the CV, Dr. Edwards’s testimony proce eded a

nd conclude d without the CV. The
next day , the doctor’s office faxed a copy of the CV to the District Attorney ’s office which was then

T h e j u ry convicted Sheikh of ag g rava ted assault “as alleg ed in the indictment.” The 2 ag g rava ting fac tor alleg ed in the indictment was the use of a deadly wea pon during the assault. The jury also returne d an aff

irmative answe r to a separ ately submitt ed question about the use of a deadly wea pon. The aff

irmative deadly wea

pon finding rende red Sheikh ineligible for judge -orde red community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (a) (2) (West Supp. 2012). Arg uably , Sheikh was still not elig ible for community supervision even with the court omitti ng the jury ’s aff irmative deadly wea

pon finding since the offe nse itself—ag g rava ted assault with a deadly wea pon—contained a deadly wea pon finding

. Neve rtheless, the punishment ag ree me n t in v olved the deletion of the de adly

wea pon finding in order to plac e Sheikh on community supervision. The rec ord ref

lects that Dr. Edwar ds had moved to California prior to trial and had trave led 3 back to Te x as to testify

. 8delivere d to the lead pr osecutor but a ppare ntly not pr ovided to defe nse counse l. The habe as cour t found that the State suppressed the CV, that the CV was favor able evidenc e, and that CV was materia l beca

use it contained inconsistencies with the doctor’s trial testimony that defe nse counsel could have used t o impeach Dr. Edwar ds. Acc ording ly , the habea s court g rante d relief on this fifth g round. D. Points of Error

on Appeal The State appea ls the habea s court’s g rant of relief , raising eig ht points of err or. The first four points of err or complain that the habea s court err ed in g ranting relief based upon the State’s purported use of perjure d t es t i m o n y of Dr. Edwar ds conce rning his position at the Be n Taub

emer g ency room. The State’s first and second points of err or asser t that the trial court err ed beca use Sheikh failed to establish that the State knowing ly used perjure d testimony in violation of his fede ral rig ht to due proce ss or his state rig ht to due course of law. The State’s third point of err or arg ues that the habea s court impermissibly g rante d relief based upon a neg lige nce standard. The State’s fourth point of err or asser

ts that the habea s court err oneously conclude d that the complained- of testimony
was mate rial evide nce.

T h e S tate’s last four points of error contend t hat t he habeas court err ed in g ranting relief based upon Sheikh’s claim t hat t he S t at e s uppresse d Dr. Edwards’s curriculum vit ae. I n its fifth and six th points of err or, the State arg ues that the trial court err ed beca use Sheikh waived this claim at trial and that the claim was barr ed by the estoppel doctrine. I n its seventh point of err or, the State complains that the hab ea s court err ed in concluding that the CV had value as impeachme nt

9ev i d ence . Finally , the State asser ts in its eig hth point of err or that the habea s court er re d i n concluding that the CV was mate rial evide nce.

I n a single point of err or on cross appea l, Sheikh arg ues that the habea s court abused its discretion in deny ing relief on his fourth g round for relief

. He maintains that the trial court failed
to follow the punishment ag ree ment and there fore , his waiver of ap p ea l wa s invalid. Thus, he contends that the ha

beas c ourt err ed in deny

ing him an out- of-time appe al.

STANDARD OF REVIEW I n revie wing a trial court’s decision on a habeas corpus appli ca t i o n , we review the fac ts in the light most favor able to the trial court’s ruling and, absent an abuse of discretion, uphold the ruling

. Ex parte W

heele r , 203 S.W .3d 317, 324 (Tex. Crim. App. 2006). We aff ord almost total defe renc e to the trial court’s fac tual finding s when supporte d by the re cord, e specia lly

when those finding s are based upon cre dibilit y and demea nor. Ex parte Amezquita , 223 S.W .3d 363, 367 (Tex. Crim. App. 2006). When the rec ord contains finding s of fac t, we defe r to the finding s if the rec ord supports them. Ex parte Thompson , 153 S.W .3d 416, 417-18 (Te x . Crim. App. 2005).

I n conducting our revie w, we aff ord almost total defe renc e to trial court’s application of law to the fac ts if the resolution of the ultimate question turns on an evalua tion of cre dibilit y and demea nor. See Ex parte Peterson , 117 S.W .3d 804, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis , 219 S.W .3d 335 (Tex. Crim. App. 2007). Howeve r, a defe rential abuse of discretion revie w is not appropriate in the context of the application of law to fac ts when the trial cou rt ’s d ecision does not turn on the cre dibilit y or demea nor of witnesses. Ex parte Martin , 6 S.W .3d 524, 5 26 (Tex. Crim. App. 1999). When the trial judge is not in an appre ciably better

10position than the revie wing court, a de novo revie w by the appellate court is appropr iate. Id. (citing

Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997)); Ex parte Franklin , 310 S.W .3d 918, 921 (Tex. App.—B eaumont 2010, no pet.)

. Finally , when the resolution of the ultimate question
turns on application of leg al standards, we revie w the deter mination de novo. Peterson , 117 S.W .3d at 819.

DISCUSSIO N I. F alse Testim ony Claim The habea s court found that Dr. Edwar ds made false or misleading statements when he testified that he serve d as the chief of the Be n Taub emer g ency room. The habea s court ultimately conclude d that these statements wer e materia l. I n its fourth point of err or, the State challeng es that conclusion and, c onsequently , the habe as cour t’s g rant of r elief on g round one. A. Use of False Testim ony

A convi ction procur ed throug h the use of false testimony is a denial of the due pro ce s s gu ara

nteed by the Fe dera l Constit ution. Napue v. Illinois , 360 U.S. 264, 269 (1959); Mooney v. Holohan , 294 U.S. 103, 112-13 (1935); Ex pa r t e Gh a h r em a ni , 332 S.W .3d 470, 477 (Tex. Crim. App. 2011). A due-pr ocess violation may arise not only throug h false testimony elicited by the State, but a lso by the State’s failure to c orre ct testimony it knows to be false. Ghahremani , 332 S.W .3d at 477; Estrada v. State , 313 S.W .3d 274, 288 (Tex. Crim. App. 2010) (citing Napue , 360 U.S. at 2 6 9 ). “It does not matter whether the prosec utor actua lly knows that the evidenc e is false; it is enoug h that he or she should have rec og nized the misleading nature of th e evidenc e.”

11Ghahremani , 332 S

. W

. 3 d at 477 (quoting Duggan v. State , 778 S.W .2d 465, 468-69 (Tex.

Crim. App. 1 9 8 9 ))

. T h us, due proce ss may be violated by a prosec utor’s unknowing use of perjure d testimony

. Ex par t e N apper , 322 S.W .3d 202, 242 (Tex. Crim. App. 2010); Ex parte Chabot , 300 S.W .3d 768, 771-72 (Te x . Crim. App. 2009).

The case law in this are a fre quently refer s to perjure d testimony ; howeve r, there is no require ment that the offe nding testimony be criminally perjurious. Ex parte Robbins , 360 S.W .3d 446, 460 (Tex. Crim. App. 2011), cert. denied , 132 S.Ct

. 2374 (2012); Ghahremani , 332 S.W .3d at 477. The rules are not a imed at pre venting the cr ime of per jury but are desig ned to

ensure that the defe ndant is convicted and sentenc ed on truthful testimony

. Ghahremani , 3 3 2 S.W .3d at 477-78. Thus, it is sufficie nt that the wit ness’s testi mony is false or g ives the t rier of fac t a false impression. Robbins , 360 S.W .3d at 460; Ghahremani , 332 S.W .3d at 477; see Napue , 3 6 0 U. S

. at 2 69; see also Alcorta v. Texas , 355 U.S. 28, 31 (1957) (due proce ss violated where witness g ave jury “fa lse impression” by testify ing that he did not “love” victim and had not been on any “date s” with victim, but omitted fac t that he had had sexual interc ourse with vic tim on sever al

rec ent occ asions).

To constitute a due-pr ocess violation, the testimony used by the State must have been false and i t must have be en mater ial to the defe ndant’s convic tion, meaning “ther e is a re asonable likelihood that the false tes t i m o n y co u l d have aff ecte d the judgme nt of the jury .” Robbins , 360 S.W .3d at 459-60 (citing United States v. Agurs , 427 U.S. 97, 103-04 (1976); Gh a h r em a n i , 332 S.W .3d at 478). To obtain relief for the unknowing use of false testimony , the habea s applicant
must prove by a preponde ranc e of the evidenc e that the err or contributed to his conviction or

12punishment. Napper , 322 S.W .3d at 242; see Chabot , 300 S.W .3d at 771 (quoting Ex parte Fierro ,

934 S.W .2d 370, 374 (Tex. Crim. App. 1996)).

B. The Testim ony of Dr. Edwards

When Dr. Edwar ds testified at trial, the following exch an ge took place when the prosec utor asked D r. Edwa rds about his prior medic al training and experienc e: Q. Was this t he first time y ou have w orked in a n emer g ency

room? A. No. I worke d in emer g ency rooms for my entire training peri od, as well as I was the chief of Be n Taub Emer gen cy Room which is the fourth busiest trauma hospital in the United States. And then, I worke d for a number of y ear s at Huntsv i l l e o n a particula r basis in the emer g ency room. And at Ba y lor there was no emer g ency room doctor prog ram, so the surg eons cover the emer g ency room. So we have complete training in emer g ency manag ement. Q. Be n Taub is the tra uma ce nter in Houston, Texas. A. I t cover s the entire me tro Houston are a. Q And how long -- what was y our position there? A. I was the chief of the emer g ency room at Be n Taub cover ing the entire trauma component of H arr is County or Houston. Q. What does it mean to be chie f? A. I was re sponsible for the treatment of all patients who were triag ed into the emer g ency room which could be up to 200 a day , 200, 300 patients a day for 24-hour pe riod shifts.

At the writ hear ing, Dr. Kenne th Mattox , chief of surg ery and chief of staff at the Be n Taub Genera l Hospital, testified t hat whil e there i s no officia l title that is “chie f of the emerg ency

13room of Be n Taub Hospital,” the term chief is often used to ref er to the individual who is in control of the emer g ency cente r minute by minute. That person is the chief resident. He further testified that

one of the require ments of the chief resident assig ned to the emer g ency cente r is that he sign off on

ever y patient seen in the emer g ency room, which could be up to 200 patients. Dr. Mattox also 4 testified that the chief

resident wa s the person w ho would be in control of the flow of patients, the work-up of patients, and the minute-to-minute opera tion of the emer g ency room. Consequently , the

rec ord ref lects that Dr. Edwar ds convey ed acc urate information about his responsibilities in the Be n Taub Emer g ency

Center. Whil e concluding that the statements about his position wer e false or misleading , the habea s court found that the term “chie f” was commonly used to ref er to a chief resident. The court also found that Dr. Edwar ds was a chief resident and that he worke d in the Be n Taub em erg ency

room and was responsible for the trea tment of all p at i en t s wh o wer e triag ed into that emer g ency

room. Thus, the finding s of habea s court also ref lect that the descr iption of duties that Dr. Edwar ds provided to the jury

—“cove ring the entire trauma c omponent”—wa s in fact a ccur ate.

C. Materiali ty of Te

stim ony I n order to obtain relief based upon Dr. Edwar ds’s testimony which the habea s court found to be fals e o r m i sleading , the testimony must have been materia l to Sheikh’s conviction. Sheikh must demonstrate a reasonable likelihood that Dr. Edwar ds’s ref err ing to himself as the “chie f of Be n Taub emer g ency room” instead of “eme rg ency cente r surg ery chief ” or “chie f surg ical

Dr. Mattox stated that at times the Be n Taub Emerg ency Center has had as many as 350 to 4 400 patients a da

y and, at the time of

the writ hea

ring , had 200 to 300 patients per day

. 14resident” could have aff ecte d the judgme nt of the jury

. See Agurs , 427 U.S. at 103-04; Ghahremani , 332 S.W .3d at 478. We do not find that Sheikh met this burden. Although Dr. Edwar ds may have ref err ed to himself by the technica lly inacc urate term us ed within the medical profe ssion, he

acc urate ly informed the jury about his responsibilities and duties. We do not believe the inacc urate

or incomplete phrasing of his title contributed to Sheikh’s conviction. Thus, we fin d t h at this testimony was not mater ial. Acc ording ly , we find that t h e habea s court err ed in concluding that Dr. Edwar ds’s
statements about his position at the Be n Taub Emerg ency Center wer e materia l and that the State’s

use of this testimony denied Sheikh due proce ss and due course of law. W e fu rt h er find that the habea s court abused its discretion in g ranting habea s relief upon this g round. We sustain the State’s fourth point of er

ror. 5

II. Su ppressed Evid ence C laim T he habea s court found that the State failed to disclose the curr iculum vit ae o f Dr. Edwar ds to the defe nse and, further , that the CV had impeachme nt val u e beca use it failed to contain fac ts that wer e inconsistent with the doctor’s testimony at trial. The habea s court conclude d that the suppres s ed C V wa s b oth favor able and materia l. I n its eig hth point of err or, the State challeng es that conc lusion and, theref ore, the habea s court’s g rant of r elief on g round five.

Be cause we sustain this point of er ro r, we d o n o t addre ss the other three points of err or 5 complaining about the habe as cour t’s g rant of r elief on g round one. See Tex. R. App. P . 47.1.

15A. Brady/Bagl ey V iolation Due proce ss requires the prosec ution to disclose exculpatory and impeachme nt evidenc e to the defe nse that is materia l to either g uilt or punishment. Ex parte Ree d , 271 S.W .3d 698, 726 (Tex. Crim. App. 2008); see Brady v. Maryland , 373 U.S. 83, 8 7 (1963); United States v. Bagley , 473 U.S. 667, 676 (1985). To succe ed in showing a due-pr ocess violation for the suppression of evidenc e, a defe ndant must show that: (1) the evid en ce i s fa v orable to the

acc used beca

use it is exculpatory or impeaching ; (2) the evidenc e was suppressed by the State, either inadver tently or willfully ; and (3) the suppression of the evidenc e resulted in prejudi ce . Ree d , 271 S.W .3d at 726; see Pena v. State , 3 5 3 S .W.3d 797, 809 (Tex. Crim. App. 2011) (quoting Hampton v. State, 86 S.W .3d 603, 612 (Tex. Crim. App. 2002)). 1. Duty to Disclose A prosec utor’s duty to reve al exculpatory evidenc e to the defe nse attache s when the information comes into the State’s possession. Harm v. State , 183 S .W.3d 403, 407 (Tex. Crim. App. 2006). “ Brady and its prog eny do not require prosec uting authorities to disclose exculpatory information t o d ef

en d an t s that the State does not have in its possession and that is not known to exis t.” Pena , 353 S.W .3d at 810 (quoting Hafdahl v. State, 805 S.W .2d 396, 399 n.3 (Tex. Crim. App. 1990)). Fur

ther, the State does not have a duty to disclose if the defe ndant was actua lly awa re of the exculpatory evidenc e or could have acc essed it from other source s. Pena , 353 S.W .3d at 810; see H arm , 183 S.W .3d at 407; Havard , 800 S.W .2d 195, 204-05 (Te x . Crim. App. 1989).

162. Favorable Ev idence To succe ed o n a B r ady/Bagley claim, an appellant must show that the evidenc e withheld by the S tate was “fa vorable ” to his case . Pena , 353 S.W .3d at 811. Favorable evidenc e is that which, if disclosed and use d eff ectively , “may

make the differ ence betwee n conviction and acquittal.” Id. (quoting Bagley , 473 U.S. at 676). Fa vorable evidenc e includes exculpatory evidenc e

as well as impeachme nt evidenc e. Bagley , 473 U.S. at 676; Pena , 353 S.W .3d at 811. “Exculpatory evidenc e is that which may justify , excus e, or clea r the defe ndant from alleg ed g uilt, wher eas i mpeac hment evidenc e is that which dis putes, disparag es, denies, or contradicts other evid en ce . ” Pena , 353 S.W .3d at 811-12; Harm , 183 S.W .3d at 408; Thomas v. State , 841 S.W .2d 399, 404 (Tex. Crim. App. 1992). 3. Materiality Nondisclosure of

favor able e vidence violates due proc ess onl y if it is “materia l” to g uilt or punishment. Pena , 353 S.W .3d at 812. Materia lity , as incorporated into the third prong , is

a require ment that a defen d an t m ust be prejudice d by the State’s failure to disclose the favor able evidenc e. Banks v. Dretke , 540 U.S. 668, 691 (2004). “The mere possibili ty that an i tem of undisclosed information might have helped the defe nse, or might have aff ecte d the outcome of the trial, does not establish ‘mater iality ’ in the constitutional sense.” Pena , 353 S.W .3d at 812 (quoting Agurs , 427 U.S. at 109-10); see W ebb v. State , 232 S.W

. 3 d 1 0 9 , 1 1 4 -1 5 (Tex. Crim. App. 2007) (quoting Hampton , 86 S.W .3d at 612). As the Court of Criminal Appeals ar

ticulated:

The question is not whether the defe ndant would more likely than not have rec eived a differ ent verdic t with the evidence, but whether in its absenc e he rec eived a fair

17trial, understood as a trial resulting in a verdic t worthy of confide nce. A “re asonable

probability ” of a differ ent result is acc ording ly shown when the [S tate’s] evidentiar y suppression “unde rmines conf idence in the outcome of the trial.”

Pena , 353 S.W .3d at 812 n.11 (quoting Kyles v. W hitley, 514 U. S

. 4 1 9 , 434 (1995)) ; see Bagley , 473 U.S. at 682 (citing Strickland , 466 U.S. at 694). “He nce, the defe ndant must show that, ‘in light of all the evidenc e, it is rea sonably probable that the outcome of the trial would have been differ ent had the prosec utor made a timely disclosure.’” Pena , 353 S.W .3d at 812 (q u o t i n g Hampton, 86 S.W .3d at 612); see Bagle y , 473 U.S. at 682. Materia lity depends on the circ umstances of the particula r case and the evidenc e as

a whole. W

ebb , 232 S.W .3d at 114. When evalua ting whether the materia lity standard is satisfied, the streng th of the exculpatory evidence i s balanc ed ag ainst the evidenc e supporting conviction. Pena , 353 S.W .3d at 812; Hampton , 86 S.W .3d at 613. T h e s u p p re s s ed evidenc e is considere d collectively , rathe r than item-by -item. Pena , 353 S.W .3d at 812; see Kyle s , 514 U.S. at 436.

B. The Su

ppressed Curriculu m V

itae At the beg inning of his cross-e x amination of Dr. Edwar ds, defe nse counsel asked the doctor for his curr iculum vitae. Dr. Edwar ds, howeve r, had not broug ht a copy of his CV with him
to the courtroom but had one with his lugg ag e at his hotel. After a brief discussion among the prosec utor, defe nse counsel, the doctor, and the court about possibly retrie v ing the CV, defe nse counsel conducte d his cross-e x amination of the doctor—without the CV. At the conclusion of the doctor’s testimony , approximately seven minutes afte r the discussion about retrie ving the CV, there

18was a question from the court about needing “that” to which defe nse counsel stated “No.” The next 6 morning , outside the presence of t he jury , the court asked the State if it had, or had ever rece ived, the CV of Dr. Edwar ds. The second chair prosec utor responde d that she thought the defe nse had decide d they did not want the CV and that she did not think the State had obtained a copy of the CV from Dr. Edwar ds. Def

ense counsel, both prese nt during this exchang e, rema ined silent and never indicated other

wise. L ater

that morning , an employ ee f rom Dr. Edw ards’ s office faxed a c opy of 7

The following occur

red at the end of defe nse counsel’s cross examination of Dr. Edwar ds: 6
[DEFENSE COUNSEL ]: I think that’s clear enoug h. We pass the witness. [P ROSECUTOR] : We have no fur ther que stions for the witness. THE COURT: Do we need tha t? [DEFENSE COUNSEL ]: No. [P ROSECUTOR] : Well -- [DEFENSE COUNSEL ]: I think it i s clea r.

The prosec utor then asked for a brief rec ess to work with the witness to retrie ve his lugg ag e but the court a dvised the State to move on to the next witness and the proce eding s continued. Both de fense attorney s remaine d silent during the following exchang e: 7

THE COURT: Does the State have a C.V. for this witness? Did y ou ever g et the one for y esterda

y ’s witness, the doctor ? [P ROSECUTOR] : I don’t know wha t the -- THE COURT: Do y ou ever g et the -- [P ROSECUTOR] : -- if they decide d to not want it.

19the doctor’s CV to the District Attorney ’s office

. Shortly afte r rec eiving the fax, the victim service s

coordina tor broug ht it over to the lead pr osecutor w hile the g uilt-innocence phase of trial was still in prog ress. The rec ord contains conflicting testimony about whether the defe nse was informed about the re ceipt of the faxed CV.

During their testimony at the writ hear ing, both prosec utors indicated that they understood the exchang e betwee n the court and defe nse counsel at the conclusion of Dr. Edwar ds’s testimony to mean that the defe nse was no l ong er interested in obtaining the CV. L ead defe nse counsel testified that he did not know what he and the judge wer e ref err ing to during that exchang e, but co-c ounsel conce ded the exchang e could very well have been about the CV. The lead prosec utor also indicated that she believed she had turned the CV over to defe nse counsel afte r rec eiving it from the victim se rvice s coordina tor althoug h both defe nse attorne y s testified that the State never made them awa re tha t the State had re ceive d a fa x ed copy of the CV. The habea s court made no specific finding s about the exchang e that took place at the

c o n c lu s io n o f D r . E d

w a r d s ’s testimony

—what the exchang e ref

err ed to, whether defe nse counsel had

cea sed reque sting the CV, or whether the prosec utors understood that they no longe r had to obta in the CV. Howeve r, when finding that the State suppressed the CV, the habea s court did find that the lead prosec utor was not cre dible and the defe nse attorney s wer e cre dible. T h e habea s court also 8 found that the State did not disclose the CV to def ense c ounsel during trial.

THE COURT: You didn’t eve n g et a c opy of it? I was c urious. [P ROSECUTOR] : I don’t know. I don’t think so. The c ourt made no f

indings a bout the cre dibilit y

of the sec ond chair

prosec utor. 8 20The habea s court made a specific finding t h at the CV was favor able beca use the inconsistencies betwee n the CV and Dr. Edwar ds’s trial testimony could have been used to impeach Dr. Edwar ds. These inconsi s t en ci es ar o s e not from what the CV contained, but rathe r from information that was not included in the C V. T he habea s court descr ibed three inconsistencies: (1) Dr. Edwar ds testified about moonlighting at Huntsville Me morial Hospital, but did not list this moonlighting experience on his CV; (2) Dr. Edwar ds did not list Huntsville Memorial Hospital on his CV among the hospitals wher e he had wor ked; and ( 3) Dr. E dwar ds testified that he wa s chief of t h e Be n T au b E merg ency Center, but does not list that position or employ ment on his CV. Charac terizing this case as a battle betwee n experts, the habea s court co n cl uded that the CV was materia l beca

use t h e d ef

ense did not have an opportuni ty to use t he information missing from the CV to impeach Dr . Edwar ds, the State’s expert.

C. Materiali ty of Evidence

I n order to obtain relief based upon the suppression of Dr. Edwar ds’s C V, S h ei k h
must demonstrate that the suppression of the CV resulted in prejudice

. He must show that, in light of all the evidenc e, it is rea sonably probable that the outcome of the trial would have been differ ent had the State provided Dr . Edwar ds’s CV to defe nse counse l. See Bagley , 473 U.S. at 682; Pena , 353 S.W .3d at 812. Howeve r, the mere possibili ty that the undisclosed CV might have helped the defe nse impeach Dr. E d wards, or even might have aff ecte d the outcome of the trial, does not establish materia lity in the constitutional sense

. See Pena , 353 S.W .3d at 812; W ebb , 232 S.W .3d
at 114-15. The question is whether Sheikh established that the S t ate’s failure to disclose the CV

21undermines confide nce in the outcome of the trial. See Bagley , 473 U.S. at 682; Pena , 353 S.W .3d 9 at 812 n.11. I n revie wing the rec ord, even d ef er ri n g t o the finding s of fac t made by the habea s court, we do not find that Sheikh met his burden of demonstrating prejudice

. When evalua ting the

m at eriality of suppressed evidenc e, we must balanc e the streng th of the impeachme nt eviden ce ag ainst the evidenc e supporting conviction. See P en a , 3 5 3 S.W .3d at 812; Hampton, 86 S.W .3d at 613.

1. Evidenc e Supporting Conviction

The indictment in this case char g ed Sheikh with ag g rava ted assault by causing bodily injury to Be th by chok i n g her and using his hands as a deadly wea pon. The evidenc e supporting Sheikh’s conviction—that is, evidenc e demonstrating bodily injury resulting from strang ulation and the use of a

deadly wea pon—came from multiple sources, not just from Dr . Edwar ds. 1 0 First, the evidenc e o f s t rangula tion and bodily injury came from the testimony of multipl e witnesses as well as photogr aphic evidenc e. Be th testified about t h e p ar k i n g g ara g e

The State’s suppression of the CV could only have beg un upon re ceipt of the faxed CV 9 from Dr. Edwar ds’s office beca use only then would the impeachme nt evidenc e—the inconsistencies from the information missing on the CV—have come into the State’s possession or knowledg e. See Harm v. State , 183 S.W .3d 403, 407 (Tex. Crim. App. 2006). We note that the rec ord ref lects that the S tate rece ived t he fax ed C V t he day afte r Dr

. E dwar ds testified. The recor d does not indicate whether Dr. Edwards returned to California after his testimony , althoug h it does ref lect that at the conclusion of his testimon y h e i n tended to retrie ve his lugg ag e from his hotel. This sug g ests that Dr. Edwar ds was no longe r in Texas when the State rec eived the faxed copy of his CV the day afte r he testified.

Dr. Edwar ds testified as a fac t witness about the injuries he observe d on the victim at the 1 0 time he tr eate d her in the emer g ency room. These observa tions wer e documented in the medical rec ords admitted at trial. 22strang ulation inc id e n t w h e r e Sh e ik h p ainfully choked her until she lost consciousness. She identified the bruises on her neck in the photogr aphs admitted into evidenc e as the injuries resulting from Sheik g rabbing her around her neck and choking her. I n addition, the victim serv i ces counselor for the Austin Police Depa

rtment as well as two o f Be t h ’s friends testified that they saw the bruises on Be th’s neck a fter the assault. Fur ther, one of the police detec tives testified that he saw the bruises and, based upon his law enfor ceme nt experience , the bruises looked like hand prints or fing erpr ints. Finally , another detec tive testified about the bruising about Be th’s neck are a as well as the fac t that her voic e wa s raspy .

Second, the e vidence supporting the finding that Sheikh use d his ha nds as a dea dly

wea pon also came from multipl e source s excluding Dr. Edwar ds. Ag ain, Be th identified her injuries in the photogr aphs admitted befor e the jury

. She testified that she could not brea the and that she lost consciousness when Sheikh choked her. She also desc ri b ed t h e brief para ly sis that followed the

s t ra ng ulation. Her testimony alone is enoug h to support the jury ’s deadly wea pon finding

. See English v. State , 647 S.W .2d 667, 668-69 (Tex. Crim. App. 1 9 8 3 ) (either expert or lay testimony may be sufficie nt to support deadly we ap o n fi n d ing by jury ); see also Tucker v. State , 274 S.W .3d 688, 691-92 (Tex. Crim. App. 2008) (“Eve n without expert testimony or a descr iption of the wea pon, the injuries suffe red by the victim can by themselves be a sufficie nt basis for inferr ing that a deadly wea

pon was used.”)

. I n addition, one of the detec tives testified that based upon his law enfor ceme nt e x perie nce with other strang ulation c ases, he believed that Sheikh’s hands wer e used

as a deadly wea

pon in this case . See Tuc ker , 274 S.W .3d at 691-92 (citing Hawkins v. State ,

23605 S.W .2d 586, 588 (Tex. Crim. App. 1980)) (police office rs can be expert witnesses with respe ct

to whether

deadly wea pon was used)

. The habea s court conclude d that Dr. Edwar ds’s expert medical opinio n about strang ulation being the cause of the Beth’s injuries wa s cruc ial to the S tate’s case. But, under t he indictment in this case , the State mere ly had to prove that Sheik cause d bodily injury to Be th and that he used a deadly wea

pon. Neither of these elements require d expert medical testimony

. I t does not take medical expertise to r ecog nize that choking a person to the point that she loses consciousness and suffe rs bruising on her neck may be sufficie nt to constitute bodily injury

. See Tex. Penal Code Ann. § 1.07(a) (8) (West 2011) (“bodily injury ” means “phy sical pain

. . . or impairment of phy sical condition” ); Laster v. State , 275 S.W .3d 512, 524 (Tex. Crim. App. 2009) (The broad definition of bodily injury “enc ompasses even rela tively minor phy sical contac t if it constitutes m ore than offe nsive touching

. Direc t evidenc e that a victim suffe red pain is sufficie nt to show bodily injury .”) (interna l citations omitted). I n addition, t h e evidence—without any medical expert testimony —demo n s trated that Sheikh’s hands in the manner of their use in choking Be th wer e capa ble of causing serious bodi ly injury or d eath. See Tucker , 274 S.W .3d at 691 (citing McCain v. State , 22 S.W .3d 497, 503 (Tex. Crim. App. 2000)) ( State not require d to prove de adly wea pon

cause d death or serious bod ily injury , only that object, in manner of its use or intended use, was capable of ca u s i n g death or serious bodily injury ) (empha sis in orig inal). I t does not take expert medical testimony to rec og nize that the inability to brea the could easily place Be th’s life in jeopar dy

. The overa ll evidenc e prese nted—from Be th, her friends, the detec tives, the medical

rec ords, and the photog raphic evidenc e—strong ly supports Sheikh’s conviction.

242. The Impe achme nt Evidenc e The habea s court found th at t h e i mpeac hment value of the CV derive d from information the CV failed to contain. T h ese omissions —char acte rized as inconsistencies by the habea s court—we re not, howeve r, the stron ges t i mpeac hment evidenc e. The failure to list moonlighting work, the hospital at which that moonlighting work was done, or his position as chief surg ery resident of the Be n Taub Emerg ency Center on his r esume simply does not provide strong impeachme nt materia l with reg ard to Dr. Edwar ds’s training and ER experience as a medical doctor. T h e habea s court conclude d that the State suppressed the CV in order to heig hten Dr. Edwar d s ’s

cre dentials, but the failure to include the noted information does not detra ct from or conflict with the doctor’s crede ntials as he presente d them to the jury in his testim ony . When the prosec utor asked about his training , Dr. Edwar ds testified that he had 15 y ear s of medical trainin g af t er co l l ege. Dr. Mattox testified at the writ hear ing that Dr. E d wa rd s ’s C V ref lected any

wher e from 14 to 19 y ea rs o f medical training

. Fur ther, Dr. Mattox indicated that to discover the full extent o f Dr. Edwar ds’s training y ou would have to ask Dr. Edwar ds direc tly beca use that information could not be discer

ned fr om the CV alone. With reg ard to his experienc e working in e merg ency rooms, Dr. Edwar ds testified that he worke d in emer g ency rooms for his entire training period. Dr. Mattox testified at the writ hear ing that this statement was a true statement based upon Dr. Edwar ds’s CV. T hus, the CV did not contra dict Dr. Edwar ds’s trial testimony about his medical training and experienc e.

Fur ther, the inconsistencies noted by the habea s court do not impugn Dr. Edwar ds’s testimony reg arding h i s t ra i n i n g and experience

. Whil e it is true that the CV does not list any

25moonlighting work, thi s omission cre ates mi nimal, if any , impeachme nt opportunity

. I n fac t, this

information pro v id e s further evidenc e of Dr. Edwar ds’s medical experience , possibly enhanc ing, not diminis hing, his expert status. Simi larly , the failure of the CV to ref lect employ

ment at Huntsville Medica l Hospital d o es not g ener ate strong impeachme nt materia l. The CV does not list any employ ment at all. Rather, the hospitals wher e Dr. Edwar ds worke d are listed under the “Ac ademic Record” section where he lists the hos pitals aff iliated with his residenc y . Hi s moonlighting work
at Huntsville Memorial Hospital was not aff iliated with his residenc y . There fore , this infor mation

was a ppropriate ly

not included in this section of the C V. Dr. Mattox expli citly testified t hat none of the information on Dr. Edwar ds’s CV conce rning his residenc y ex perie nce appea red to be incor rec t. The habeas co urt emphasized the importance of Dr. Edwar ds’s testimony —and there fore the importance of his CV for impeachme nt purposes—be cause of the testimony of two other medical experts. First, the ER doctor who examined Be th the previous day afte r the dorm

room strang ulation assaults testified that he did not see any injuries on her. Second, the defe nse had

an expert who conclude d, afte r revie wing the photogr aphs of the victim, that Be th’s injuries did not result from strang ulation. Be cause of their testimony , the habea s court conclude d that Dr. Edwar ds

was the only witness who found Be th’s i n j u ri es consi stent with her descr iption of being choked. Howeve r, the testimony of Be th’s friends , t h e victim service s coordina tor, and the two detec tives—including the one who rec og nized the bruises as being in the pattern of fing erpr ints, all

corr oborate the strang ulation assault Be th descr ibed. I n addition, the photogr aphs of the bruises on

26Be th’s neck further corr oborate Be th’s acc ount of the assault. Thus, Dr. Edwar ds’s medical opinion

was not the c rucia l evidence the habe as cour t found it to be. The habea s court opined that it was critica l fo r t h e State to demonstrate that Dr. Edwar ds was proficie nt and knowledg eable in emer g ency room medicine. Thus, the court 1 1

rea soned that the fac t that the CV failed to list his positio n o f chief of the Be n Taub Emerg ency Center provided an opportunity for impeachme nt to attack Dr. Edwar ds’s cre dentials. Howeve r, as

we noted previously , while the title Dr. Edwar ds used may have been tech n i ca l l y inacc urate or incomplete, his descr iption o f h i s d u t ies and responsibilities was entirely acc urate

. He corr ectly convey ed his responsibilities and medical experience at the Be n Taub Emerg ency C enter. Thus, beca use Dr. Edwar ds acc urate ly descr ibed the responsibilities he had, any inconsistency betwee n the title u s ed wi t h i n the medical community and the technica lly corr ect title provided only limit ed impeachme nt material.

We conclude that the C V had very littl e, if any , impeachme nt value. Accor dingly , when b al an ci n g the wea

kness of the impeachme nt evidenc e ag ainst the streng th of the evidenc e supporting conviction, we conclude that the CV was not ma terial. For that rea son we find that the habea s court err ed in concluding that the Sta te’s suppression of Dr. Edwar ds’s curr iculum vitae d en i ed S h ei k h due proce ss and due course of law. We hold that the habea s court abused its discretion in g ranting habea s relief upon this g round and sustain the State’s eig hth point of err or. 1 2

We note, howeve r, that the rec ord ref lects that the State did not emphasize Dr. Edwar ds’s 1 1 cre dentials during jury arg ument at all but only addre ssed them in response to defe nse counsel’s attack of the doctor’ s cre dentials in his closing a rg ument. Be cause we sustain this point of error, we do not addre ss th e o t her three points of error 1 2 rela ted to the habe as cour t’s g rant of r elief on g round five. See Tex. R. App. P . 47.1.

27III. Ou t-of-Tim e Appeal I n his sole point of err or on cross appea l, Sheikh arg ues that the habea s court abused its discretion in deny ing r elief upon the fourth g round asse rted in his habea s corpus application in which he claimed that his waiver of appeal was invalid beca use t he trial court failed t o follow the punishment ag ree ment.

A. Clai m Not Cogni

zable Article 11.072 descr ibes the proce dure for an appli c a n t w h o s e eks relief from an order or j udg ment of conviction ordering community supervision. See Tex. Code Crim. Proc. Ann. art. 11.072, § 1. The applicant must be, or have been, on community supervision. Id

. art. 11.072, § 2(b). I n addition, the application must ch al l eng e the leg al validity of: (1) the conviction for which

comm u n i t y s u pervision was imposed or the order imposing community supervision; or (2) the conditions of community supervision on constitutional g rounds. Id. art. 11.072, §§ 2(b), 3(c)

. Thus, the statute authorizes the trial court to g rant relief from a judgme nt of convic tion for community supervision or an order imposing comm u n i t y supervision only when the applicant asser ts the above- descr ibed cha lleng es. See id. art. 11.072, § 1.

Sheikh c omplained in his fourth g round for habea s corpus relief that he was denied his rig ht to appea l. The relief soug ht reve als the nature of his claim. Sheikh soug ht an out-of-time appea l. He did not challeng e the leg al val i d i ty of his conviction by the jury —the conviction for which community supervision was imposed—but mere ly soug ht a means to subsequently challeng e the leg al validity of that conviction. Nor did Sheikh challeng e the leg al validity of the order in which communi t y supervision was im posed. I n fac t, Sheikh asser ts in his brief that his claim before the

28habea s court “neve r challeng ed the lawfulne ss of his sentenc e or the manner in which he was g rante d

community supervision.” I n his fourth g round for relief , Sheikh did not challeng e the leg al validity of the judgme nt of conviction at all but rathe r asser ted that the err ors in the judgme nt demonstrated

a denial of his rig ht to appea l. S h ei k h ’s co m p l aint about the denial of his rig ht to appea l is not a valid claim under

article 11.072. Be cause Sheikh’s claim failed to challeng e the leg al validity of his ag g rava ted assault conviction or the order imposing community supervision, we find that Sh ei k h ’s cl ai m is not cog nizable on an application for habea s corpus relief under article 11.072. Acc ording ly , we find that the habe as cour

t did not abuse its discretion in deny ing r elief.

B. The Pun ishm ent Agreem ent

Neve rtheless, assuming arguendo the claim asser ted in Sheikh’s fourth g round was cog nizable, the habeas court did not abuse its discretion in deny ing relief beca use S heikh was not denied his r ight to a

ppeal. The rec ord ref

lects that his w aiver of appea l w as valid beca use the trial court followe d the neg otiated punishment ag ree ment.

At trial, afte r the jury returne d the verdic t of g uilty , the State and defe nse rea ched an ag ree ment as to punishment. Pursuant to the punishment ag ree ment, Sheikh withdrew his elec tion fo r t h e j u ry to assess punishment and waived his rig ht to appea l. The trial court ref raine d from

en tering a deadly wea

pon finding and Sheikh was g rante d a suspended sentenc e and p l ac ed o n community

supervision. Sheikh as s er t s t h at err ors in the judgme nt of conviction ref lect that the trial court judge failed to follow the punishment ag ree ment. He arg ues that the failure to follow the ag ree ment

29rende red his waiver of his rig ht to appea l, predic ated upon the punishment ag ree ment, invalid. Thus,

he conte nds, he is entitled to an out-of- time appea l.

The habea s court found that the trial court’s judgme nt of conviction was inacc urate in two way s: (1) the judgme nt inc orre ctly ref lects that Sheik pled g uilty when he actua lly pled not g uilty but was found g uilty by the jury , and (2) the judgme nt err oneously ref lects an offe nse date of May 13, 2005 instead of Ma

y 14, 2005. Sheikh arg ues t hat t hese error s in the j udg ment reve al t h at the t rial court judge did
not punish him for the offe nse for which the jury found him g uilty (the parking g ara g e strang ulation assault) but, unbeknownst to him, a c tu a ll y p u n is h e d h im for an extraneous ag g rava ted assault offe nse (one of the dorm room strang ulation assaults). He claims that the judgmen t o f co n viction was 1 3 intentionally enter ed by the trial court judge—wit hout the parties’ knowledg e or consent—in an eff ort to void the eff

ect of the jury ’s aff

irmative deadly wea

pon finding

. Howeve r, the habea s court

1 4

The rec ord ref

lects that while some abusive conduct occur red Fr iday evening and during 1 3 their discussions throug hout the night, the dorm room strang ulation a ssaults—in the bathroom, on the bed, and on the bed with the pillow case —all o cc u rr ed on May 14, 2005. Sheikh does not explain how this May 13, 2005 date corr elates to an extraneous strang ulation offe nse that occur red in the dorm room other than to simply asser t that the May 13, 2005 date ref ers to the Dobie incident. The re cord doe s not support that conclusion. We note that the extraneous strang ulation offe nses that occur red in the dorm room would 1 4 have been ag g rava ted assaults by virtue of Sheikh causing bodily injury to Be th and using his hands as a deadl y wea

pon. So, while enter ing a judgme nt of conviction for one of these assaults would have, arg uably , voided the jury ’s deadly wea pon finding , the trial court would not ha ve eliminated the deadly wea

pon problem beca

use the finding would still have been inhere nt in the offe nse itself: ag g rava ted assault with a deadly wea pon. Thus, it is difficult to discern how the trial court enter ed a judgme nt of conviction for an extraneous offe nse to avoid the deadly wea pon issue when doing so did not avoid the issue. 30found that the sentenc e assessed by the trial judge ’s oral pronounce ment was completely consistent

with the ag ree ment rea ched by the par ties. A trial court’s pronounce ment of sentenc e is oral, while the judgme nt, including the
sentenc e assessed, is mere ly the written manifestation of that oral pronounce ment. Taylor v. State , 131 S.W .3d 497, 500 (Tex. Crim. App. 2 0 0 4 ); Keys v. State , 340 S.W .3d 526, 527 (Tex. App.—Texarkana 2011, no pet.); see State v. Davis , 349 S.W .3d 535, 538 (Tex. Crim. App. 2011). When the court’s written judgme nt differ s from the court’s oral pronounce ment of sentenc e, the oral pronounce ment controls. Ex parte Huskins , 176 S.W .3d 818, 820 (Tex. Crim. App. 2005); Ex parte Madding , 70 S.W .3d 131, 135 (Tex. Crim. App. 2002); Aguilar v. State , 279 S.W .3d 350, 354 (Tex. App.—Austin 2007, no pet.). The rationale behind this rule is that all of the par ties are phy sically prese nt a t the sentenc ing he aring and able to hear and re spond to the imposit ion of sentenc e in the oral pronounce ment. Davis , 349 S.W .3d at 539; Madding , 70 S.W .3d at 135. There fore , “it is the pronounce ment of sentenc e that is the appea lable event, and the written sentenc e or order simply memorializes it and should comport there with.” Madding , 70 S.W .3d at 135 (quoting Coffey v. State , 979 S.W .2d 326, 328 (Tex. Crim. App. 1998)); Keys , 340 S.W .3d at 527.

I n this case , the oral pronounce ment of sentenc e by the trial court at Sheikh’s
sentenc ing was consistent with the neg otiated punishment ag ree ment. The rec ord of the sentenc ing clea rly ref lects that both parties and the judge all understood the ten-y ear suspended sentenc e to be the punishment f

or the offe nse for whic h the jury had just found Sheikh g uilty

. Consequently , the

err ors i n the j udg ment are si m p l y cl er i cal err ors, not judicial err ors as Sheikh claims. The proper

reme dy in a situation whe re the written judgme nt dif fer s from the oral pronounce ment of sentenc e

31is to modify the t ri al co u rt ’s judgme nt to match the oral pronouncement. Madding , 70 S.W .3d at

137; Aguilar , 279 S.W .3d at 354.

Sheikh contends in his cross-a p p ea l p o i n t of err or that the habea s court failed to addre ss his claim but instead ref rame d it. He arg ues that he complained about the invalid waiver of appea l but the habea s court addre ssed the illega lity of the sentenc e imposed instead. Howeve r, while
t h e co u rt discussed the illega lity of the sentenc e, the court’s finding s and conclusions direc tl y 1 5 addre ss Sheikh’s complaint about t he purported failure t o follow the puni shment ag ree ment. The habea s court expli citly found that, contra ry to Sheik’s claim, the t ri al co u rt did in fac t follow the punishment a g ree ment Sheikh ne g otiated with the State. The court expli citly reje cted the premise underly ing the claim of an invalid waiver of appea l and, there fore , i m p l i cit ly reje cted this claim. Thus, the habe as cour

t impli citly

found that Sheikh’s wa iver of a ppeal wa s valid. The re cord suppor

ts the habea s court’s e x plicit finding that the tria l court followed the punishment ag ree ment and, thus, the cour t’s implicit finding that Sheikh’s waiver of appe al in relianc e upon that ag ree ment was valid. Acc ording ly , the habea s court did not abuse its discretion i n d eny ing relief upon Sheikh’s fourth g round for relief

. We overr

ule the sole point of err o r i n Sheikh’s cross-a

ppeal. 1 6

The habea s court co n cluded that Sheikh was estopped from complaining about the 1 5 illega lity of the sente nce. I n th i s p o i n t o f er ror, Sheikh also complains that the habea s court err oneously issued a 1 6 nunc pro tunc judgme nt. Howeve r, t his claim is not proper ly befor e this Court as Sheikh never prese nted this complaint to the habea s court. The nunc pro tunc judgme nt was iss ued prior to the evidentiar y hear ing on his application and prior to the filing of his second supplemental application. Howeve r, Sheikh raises this complaint for the first t i m e o n appea l. See Tex. R. App. P. 33.1(a) (1)( A). Fur

thermore , this complaint is not rele vant to his co m plaint about his purportedly invalid waiver of appea l; thus, we do not a ddress it. See Tex. R. App. P. 47.1, 32.1. I n addition, a 32CONCLUSION

On the St ate’s Appeal Upon revie w of the rec ord, we conclude that neither the incomplete title u sed by Dr. Edwar ds in his testimony nor the suppressed curr iculum vitae wer e materia l. Acc ording ly , the habea s court abused its discretion in g ranting habea s relief on g rounds one and fi v e o f Sheikh’s application for writ of habea s corpus. We sustain the State’s fourth and eig hth points of err or. The habea s court’s order is reve rsed as to g rounds one and five and judgme nt i s rendered deny ing the application for

writ of habe as cor

pus. The trial c ourt’s judg ment of convic tion is reinstated.

On Sh eikh’s Cross A

ppeal Sheikh’s complaint about the denial of his right to appe al is not a claim cog nizable

on an 11.072 writ. Moreove r, t he record supports the habeas court’s finding s and conc lusion that the trial court followed the punishment ag ree ment at sentenc ing. T h er ef ore, Sheikh’s waiver of appea l was valid and he is not entitled to an out-of-time appea l. For these rea sons, the habea s court did not abuse its discretion in deny ing relief on the fourth g round fo r relief asser ted in Sheikh’s application for writ of habea s corpus. We overr ule Sheikh’s sole point of err or on cross appea l. The habea s court’s order deny ing habea s corpus relief on g round four of Sheikh’s application for writ of habea s corpus is af

firmed.

defe ndant may appea l the trial court’s entry of a nunc pro tunc judgme nt. See, e.g. , Moore v. State , 446 S.W .2d 878 (Tex. Crim. App. 1969); Johnson v. State , 233 S.W .3d 420 (Tex. App.—For t Worth 2007, pet. ref

’d); Fanniel v. State , 73 S.W .3d 557 (Tex. App.—Houston [1st Dist.] 2002, no pet.). There fore , Sheikh should have raised any complaints rela ting to the habea s court’s alleg ed err or in enter ing the nunc pro tunc judgme nt via appea l of that order

. 33__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Rose and Goodwin Affir med in part; Rever sed and Rende red in pa rt Filed: Aug ust 17, 2012 Do Not Publish

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