OPINION
In two points, appellant William Edward Marchbanks appeals his convictions for aggravated assault against a public servant and aggravated robbery. 1 We affirm.
Background Facts
One afternoon in August 2009, Richland Hills Police Department Officer Zachary Gibson was working at a Dillard’s department store. 2 Gibson saw appellant take two stacks of shirts off a display in the men’s department and run outside the store. Gibson, who was in uniform, identified himself as a police officer and ran toward appellant as appellant entered into his car. Appellant shut his driver’s side door, but his window was down, so Gibson grabbed appellant’s shirt, told him to get out of the car, and tried to pull him out. Appellant did not get out of the car; instead, he revved his motor, placed the car in the forward gear, and quickly accelerated while Gibson was hanging out of the window. Gibson told appellant, “Stop the car. You’re going to kill me.” Eventually, another car hit appellant’s car, which threw Gibson off of the car, injuring him. Other police officers stopped appellant, found the shirts he had stolen (valued at $849.83), and arrested him.
A grand jury indicted appellant for aggravated assault against a public servant and aggravated robbery. Appellant pled not guilty to both offenses. The jury convicted him of both offenses and assessed his punishment at thirty-eight years’ confinement for aggravated assault and thirty-five years’ confinement for aggravated robbery. The trial court sentenced appellant accordingly, and he filed notice of this appeal.
Standard of Review
Both of appellant’s points concern the trial court’s decisions to deny his motions for mistrial. We review a trial court’s denial of a motion for mistrial under an abuse of discretion standard and must uphold the trial court’s ruling if it was within the zone of reasonable disagreement.
Orr v. State,
Denial of First Motion for Mistrial
In his first point, appellant argues that the trial court abused its discretion by denying the motion for mistrial that he made in the middle of the trial. During Gibson’s initial cross-examination by appellant’s counsel, he repeatedly denied punching appellant while hanging out of appellant’s car; Gibson said that appellant moved his head on his own and that there was “no haymaker by any means.” But after Gibson’s initial testimony concluded, during a lunch break, the prosecutor listened to one of the videos that had been admitted into evidence and heard Gibson say on the video that he had sucker punched appellant. After the prosecutor disclosed that fact to appellant’s counsel, appellant requested a mistrial based on the State’s nondisclosure of exculpatory evidence in advance of the trial court’s discovery deadline. The trial court denied appellant’s motion but allowed appellant to recall any witnesses to more fully develop the issue.
Before resting its case, the State recalled Gibson. He said that he did not remember punching appellant. But he did not deny punching appellant because he had said that he did so on the day of appellant’s offenses. 3
Appellant contends that the trial court should have granted a mistrial because the State violated his right to due process by knowingly using perjured testimony from Gibson. A prosecutor’s knowing use of perjured testimony “violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”
Ex parte Castellano,
Next, appellant argues that the trial court should have granted a mistrial because the State failed to timely disclose exculpatory evidence.
See Brady v. Maryland,
Under Brady, in order to ensure the accused a fair trial, a prosecutor has an affirmative duty under the Due Process Clause of the Fourteenth Amendment to turn over to the accused all exculpatory or impeachment evidence, irrespective of the good faith or bad faith of the prosecution, which is favorable to the defendant and is material to either guilt or punishment. This duty attaches as soon as the information comes into the prosecutor’s possession, with or without a request from the defense for such evidence, and the information must be disclosed to the accused in time to put it to effective use at trial.
A due process violation occurs if: (1) the prosecutor fails to disclose evidence; (2) the evidence is favorable to the defendant; and (3) the evidence is material. Favorable evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Franks v. State,
Before appellant’s trial began, the State gave appellant’s counsel copies of videos related to the altercation between appellant and Gibson, including the video that contained Gibson’s admission that he had punched appellant. If appellant’s counsel did not learn about Gibson’s admission upon receiving the videos, he became aware of it during the middle of the trial, at a time in which he could (and did) question Gibson about it and use it extensively during his closing jury argument. “If the defendant received [favorable evidence] in time to use it effectively at trial, his conviction should not be reversed just because it was not disclosed as early as it might have and should have been.”
Little v. State,
Appellant does not argue that he would have used Gibson’s admission differently or more effectively had he known about it
The record does not support this argument. After appellant’s counsel learned of Gibson’s recorded admission, counsel spent the majority of the remainder of the guilt phase of the trial focusing on whether Gibson punched appellant and whether that fact contradicted Gibson’s original testimony. 6 During the State’s closing argument, it conceded that Gibson’s admission of punching appellant had occurred, stating,
[W]e can no more stand before you and say that Officer Gibson never said anything about a sucker punch any more than the defense can get up here and say that the defendant didn’t commit aggravated robbery or aggravated assault on a public servant, because guess what, both of those are on video. It is what it is.
In the remainder of the State’s argument, it did not expressly contend that the punch had not occurred; instead, it argued that the punch was irrelevant to the jury’s consideration of appellant’s guilt. 7
For all of these reasons, we hold that the trial court did not abuse its discretion by denying appellant’s motion for mistrial based on an alleged Brady violation. We overrule appellant’s first point.
Denial of Second Motion for Mistrial
In his second point, appellant contends that the tidal court abused its discretion by denying his motion for mistrial because of an allegedly improper jury argument by the State. Appellant’s trial counsel spent the majority of his closing argument discussing Gibson’s inconsistent testimony about punching appellant. 8 After appellant’s counsel concluded the argument, the State contended in its final jury argument that appellant was using a “smoke screen” by talking about Gibson’s acts rather than appellant’s offenses. The prosecutor said, “What the defense is doing is what we call jury nullification.” Appellant’s counsel objected, stating, “It’s outside the record. There is no definition of that.” The trial court sustained the objection and instructed the jury to disregard the argument, but the trial court denied appellant’s motion for mistrial.
To be permissible, the State’s jury argument must fall within one of the following four general areas: (1) summation
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1);
Layton v. State,
The requirement that a trial objection comport to a complaint on appeal applies to jury argument points.
See Turner v. State,
Conclusion
Having overruled both of appellant’s points, we affirm the trial court’s judgments.
Notes
. See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(B) (Vernon Supp.2010), § 29.03(a)(2) (Vernon 2003).
. Gibson worked for the Fort Worth Police Department at the time of the trial.
. When the State asked Gibson why he did not remember punching appellant, he said, "I don’t remember a whole lot once the whole incident took place, once the adrenaline kicked in....” Later, he said, "If I stated [that I punched appellant], then I did. I'm not denying that.”
. In some circumstances, a witness's perjury may be imputed to a prosecutor who lacks actual knowledge of the testimony’s falsity.
See Castellano,
. A witness does not commit perjury by testifying falsely because of a reasonable mistake, such as faulty memory.
See
Tex. Pen.Code Ann. § 37.02 (Vernon 2003) (requiring an intent to deceive to sustain a perjury conviction);
De La Paz v. State,
. Appellant’s only witness, who enhanced the video of the altercation between appellant and Gibson, testified for the sole purpose of establishing that appellant's head movement corresponded with Gibson's arm entering appellant's car.
. The prosecutor said,
So let’s just assume for the sake of argument that Officer Gibson did hit him. The 12 of you go back there, and you-all agree he hit him. So what? What does that have to do with the elements of the offense that are in this indictment, that are in this Court’s charge that have to be proven? Nothing.
.Appellant’s counsel said in part,
You are judging the evidence in this case, so based upon what you saw, how it went down, how he had to be brought back, would you buy a used car from [Gibson]?
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I think with all due respect, he's young enough to learn a lesson, and he needs to learn a lesson now before he's on patrol in the City of Fort Worth. I think the lesson he needs to learn and the message you need to send is you got — you got to tell the truth....