*1 a governmental entity to include not other- clearly included scope
wise within the sovereign immunity.
the waiver of development
Because economic dis- clearly
trict is unambiguously in-
cluded within the TCHRA definition instrumentality,
state it not an “employ-
er” as defined the TCHRA and
required to constitute a waiver of immuni-
ty. If it not an employer purposes TCHRA, there is no waiver of sover- immunity
eign by the TCHRA for retalia- alleged.
tion as Without waiver there is jurisdiction.
no
I would affirm the judgment trial court’s
dismissing Purdin’s juris- claim for want of not,
diction. majority Because the does I
respectfully dissent.
Kerry Eugene MOORE, Appellant Texas, Appellee. STATE of
No. 10-02-00076-CR. Texas, Appeals
Court of
Waco.
July 21, 2004. *4 Robertson, Robertson, & Robertson
Phil Silas, Clifton, for Appellant. Hanna, County District S. Johnson
Dale Vernon, Johnson Attorney, David W. Cleburne, Attorney, County Asst. District Appellee. GRAY, Before Justice properly Chief Justice the court refused the re- VANCE, Brady instructions, quested and Justice REYNA.* no and that Accordingly, violation is shown. we affirm
OPINION the conviction. REYNA, FELIPE Justice. BACKGROUND
Kerry Eugene re- Moore’s conviction for taliation arises from an be- altercation To our facilitate discussion Moore’s superintendent. tween Moore and a school contentions, we provide brief factual charged The State Moore with assault on a background. Moore’s wife Karen was a public servant and ac- retaliation. A employed by Indepen- counselor the Venus quitted charge but assault dent District. Johnnie Hauerland School convicted him of retaliation. Moore con- superintendent was the of the district at tends that the legally evidence is and fac- resigned position time. Karen her tually insufficient support his conviction dispute legality because of a over the *5 (1) by: and that the court failing erred to policies the district’s regarding the manner quash require the indictment or the State employees in report which were to sus- to prosecute elect whether to him as- pected child abuse.1 (2) retaliation; sault or refusing to allow resigned, Karen con- When she retained impeachment of superintendent with fidential student had records that she prior misdemeanor convictions more than maintained in the employ- course her years’ ten old or to allow cross-examina- Relying provision ment. on a of the Venus tion of character regarding witnesses those contract, employment ISD’s standard (3) convictions; refusing to allow him to Hauerland paycheck withheld Karen’s final call to witnesses vouch for truthful his until she returned or for the accounted character; (4) denying request for cer- retained records. Venus ISD and tain charge; defensive in the instructions attorneys, Moores consulted who ex- (5) and denying his motion for mistrial changed correspondence regarding the dis- alleging Brady violation. pute. We hold that the evidence is sufficient to support conviction, question, Kerry that the indictment On the date proper was and no election required, try get was went to the ISD offices Venus to that the court did not abuse its discretion The payroll Karen’s check. director told by excluding evidence or cross-examina- speak Moore that he would have tion superintendent’s prior misde- Hauerland. Moore demanded the check meanor convictions because the from it probative Though disputed Hauerland. value of substantially those convictions is how the altercation commenced how it and concluded, outweighed by danger preju- up unfair Moore and Hauerland ended dice, that the court did not ground engaged struggle. abuse its dis- on the in a Oth- cretion refusing permit him to call employees physically er school removed witnesses character because the State did from the premises. Several wit- truthfulness, not attack his being character nesses testified that as Moore was n required This case was employees submitted with former Chief 1. The district re- first panel, resigned Justice Davis on the but he port suspected abuse school officials before August Reyna, effective 2003. Justice who reporting to a it law enforcement or other 5, 2004, January took the oath office on agency. participated decision of Court. met, the guilty so could not have been that would come away, he said
escorted not stand. being re- verdict should Hauerland after “get” back making this Moore denied leased bail. 539-02, 144 S.W.3d Zuniga v. No. statement. (Tex. 477, 484, 485, *7 2004 WL Crim.App.2004). AND FACTUAL LEGAL SUFFICIENCY Knowingly Intentionally and/0R his sixth issue Moore contends HARM THREATENINGTO factually insuffi- legally Hauerland (1) that he threatened cient to establish: or knowl jury may A infer intent (2) Hauerland; that he acted with to harm words, acts, and conduct edge from “the knowledge; requisite intent or Hart v. the accused.” public as a acting that Hauerland (quoting Man (Tex.Crim.App.2002) servant. (Tex. 640, 649 rique v. reviewing legal a claim insufficien- Here, heard Crim.App.1999)). light in a most cy, the evidence we view which a rational trier from ample evidence determine to the verdict and favorable inten infer that Hauerland of fact could trier of fact could any rational whether harm threatened to tionally knowingly beyond a the essential element have found Hauerland. Va., *6 reasonable doubt. Jackson 307, 319, 61 U.S. S.Ct. Hauerland, Moore threat- According to (1979); Herrin L.Ed.2d did butt” Hauerland ened to “kick [his] (Tex.Crim.App.2002). We give paycheck. Karen’s When Moore any in evidence resolve inconsistencies refused, him pushed Hauerland Moore Curry v. in of the verdict. favor to hit him. tried As against the wall and (Tex.Crim.App.2000). premises, from the he Moore was escorted come making has bail he would re- that after Appeals The Court of Criminal said Hauerland appropriate “get [Hauerland].” clarified the standard cently back claim. to a threat. insufficiency a factual construed this be review for an- question one to be only There is D’Nan Dakan testi- receptionist School factual-sufficiency a review: swered by “Hauerland grabbed fied that Moore in a neu- Considering all of the evidence against the jammed up him lapel rationally justified light, a tral was acci- “it was no testified that wall.” She guilt beyond a reasonable finding that appeared to her and that it dent” However, ways in there are two doubt? As harm Hauerland. Moore intended to may insufficient. the evidence be which from being escorted physically was itself, First, evi- considered when making that after premises, said may be too the verdict supporting dence get [Hauer- to come “going bail he was finding guilt be- support to weak land].” Second, there yond a reasonable doubt. provided Bookkeeper Michelle Salazar supporting evidence may be both substantially to Dakan’s. testimony similar contrary to the ver- verdict and evidence closing remark construed Moore’s under Salazar Weighing all dict. A school life. scale, a on Hauerland’s contrary evi- as threat balancing this that likewise testified that bus mechanic strong enough may be dence “get” Hauerland. threatened to standard beyond-a-reasonable-doubt
3H Conversely, provide adequate Moore testified Hauer- indictment failed “tripped land and he over other’s each which notice the manner and means in the feet” office and scuffled. Moore he threatened to harm Hauerland. He being physically escorted from the denied in his contends seventh issue “get” premises threatening and denied required court should have the State to Hauerland later. it prosecute elect intended to him whether of- assault or retaliation because these evidence,
From this a rational trier of reject pari fact could have fenses are in materia. inferred Moore threat- We ened harm being Hauerland after re- these contentions because the indictment jail lease from and that he did so intention- provided notice and no election adequate ally and This knowingly. same evidence is required. was factually sufficient establish that Moore
intentionally knowingly threatened to Adequacy of Notice harm Hauerland. alleges pertinent
The indictment a Hauerland’s Status Public Servant part that on in question or about the date undisputed It that Hauerland Moore superintendent school at the time of intentionally did then and there A “public altercation. servant” is “a another, knowingly threaten harm to- elected, selected, person appointed, em Haverland, servant, public wit: J. ployed, or designated otherwise as ... an an unlawful act in retaliation for or on officer, employee, agent govern account of the services or status ment.” Tex. Ann. Pen.Code servant, public said J. to- Haverland as 1.07(a)(41)(A) (Vernon § Supp.2004). superintendent wit: of the Venus Inde- Thus, Hauerland was a public servant. pendent District, Venus, Texas, School However, *7 argues that Hauerland being said unlawful act to harm J. Hav- acting was outside the scope course and erland, and said threat communicat- was his superintendent duties as because it was ed J. person. to Haverland in unlawful him to withhold Karen’s gov- that
check. The contends this case is parties presented conflicting by regarding Doyle erned in whether which the Hauerland acting Thus, lawfully was in Court of regard. Appeals this Criminal held that an rational trier of fact could have concluded indictment failed to provide adequate no- beyond a reasonable doubt alleged that Hauerland tice perti- where the indictment in acting public as a servant when he part nent that the defendant “threatened withheld check. Karen’s This same evi- to kill the Dan on said Gibbs account factually dence is sufficient support to judge said Dan services Gibbs as a finding on this issue. prior in a lawsuit in which the defendant (Tex. party.” was a
Accordingly, we overrule Moore’s sixth Crim.App.1983). The Court found the in- issue. lacking in specificity
dictment because the THE ALLEGATIONS OF “alleged conveyed threat could have been
THE INDICTMENT ways, including: in a number of face to person, phone directly, in face in over the Moore contends his fourth issue that by through party, the court a third failing grant through erred to his quash motion to the indictment because mail.” Id. at 730. Accordingly, to Moore’s seventh issue Doyle be holding
We construe lacking overruled. the indictment there was be- allege it to the manner and cause failed conveyed the defendant
means which EVIDENCE IMPEACHMENT Here, Judge kill the threat to Gibbs. concern first and third issues Moore’s communi- alleges indictment that Moore con- prior three misdemeanor Hauerland’s to to Hauerland him cated a threat harm conviction; a 1988 a 1987 theft victions: provid- person.” “in the indictment conviction; and a 1989 DWI convic- theft adequate notice of the manner ed in issue contends his third tion. Moore conveyed the means which Moore its court abused discretion Ac- to Hauerland. id. threat harm Cf refusing impeach him to Hauer- permit overrule fourth is- cordingly, we He prior theft2 convictions. land with sue. in first that the court contends his issue by refusing permit its discretion
abused vouch for witnesses called to him ask Election truthful character whether Hauerland’s in his seventh is Moore contends prior aware of the three convic- they were trial court should have re sue that tions. it in quired the to elect whether State him for assault prosecute tended Impeachment with Convictions MoRE alleged both counts retaliation because Than Ten YeaRs’ Old public assaults on a servant and because were more Because convictions pari are materia. these offenses old, they admissible years’ than ten were argue in the motion to Moore did only if their impeachment purposes hearing elect or that motion outweighed substantially probative value Ac- pan these are in materia. offenses prejudicial effect. their Tex.R. Evid. preserve has failed to this cordingly, he 609(b). Appeals of Criminal Court for our aspect of seventh issue review. cases to determine looked to federal has Tex.R.App. 33.1(a)(1). P. See considered bal factors should be what prejudicial against ancing probative value required An when election im sought be effect when the witness of a alleges the commission sin indictment *8 Theus v. peached the defendant. the at gle offense but State offers evidence 874, (Tex.Crim.App.1992) 880 the of trial that the accused committed 922, Mahone, 537 F.2d 929 (citing U.S. alleged more than once. See fense Sco Cir.1976)). (7th 679, State, 799 680 n. 3 gan v. (1) im the factors include: Brantley v. 48 Those (Tex.Crim.App.1990); (2) crime, the prior value of the peachment n. (Tex.App.-Waco 1 rela refd). prior crime Here, of the alleges temporal proximity the indictment pet. wit and the offenses, charged offense the of tive separate two and State (3) history, the similari subsequent committed the ness’s fered that Moore the offense and Thus, past the crime alleged. ty no election between two offenses (4) of the prosecuted, importance the being required. was prior [Hauerland] acknowledges allowed to cross-examine Although the been 2. his regarding connection with third convictions.” DWI conviction in issue, theft argues only have that he "should testimony, impor- credibility important defendant’s land’s not a was but credibility tance of the issue. Id. presence critical at trial due to the issue similar provided other testi- witnesses who exception With the second mony. factors, third applied these factors can be in the manner same when the witness indi- Accordingly, two these factors sought impeached to be is someone other prior that Hauerland theft convictions cate than the defendant. look We feder- value, probative have but the other three al authorities to see how second diminish probative value of the tend third factors are treated such a case. Therefore, cannot be convictions. it said Cf.id. that the value of the convictions probative only substantially outweighs danger
The second factor of un- is modified slightly reason, prejudice. federal cases. That factor fair we con- For this temporal examines the proximity of the clude that the court did not abuse its dis- prior conviction to the date the by refusing witness cretion to permit Moore to testifies and the subsequent witness’s his impeach prior Hauerland with the convic- Loizzo, tory. See Daniels v. F.Supp. tions. we overrule Moore’s third Am., (S.D.N.Y.1997); TDK Inc. v. issue. NSK, Ltd., (N.D.Ill. 917 F.Supp. 1996); Margaret Jack B. & Weinstein A Cross-Examination of ChaRacter Berger, Weinstein’s Federal Evidence vol. Witnesses ¶ 609.05[2], (Joseph 609-33 M. rebuttal, called three char- State 2001). ed., ed., McLaughlin, 2d LEXIS acter witnesses testified who their The third factor as modified examines opinion good Hauerland had a reputation similarity past between the crime and sought for truthfulness. ask any conduct of the witness at issue in the they these witnesses whether had heard Am., present trial. See THK F.Supp. that Hauerland had prior the two theft 570; at Berger, & Weinstein Weinstein’s prior convictions and the conviction DWI ¶ 609.05[2],
Federal Evidence vol. 4 at 609- objected proba- issue. The State 33. line questioning tive value of this case, outweighed
Applying substantially by danger these un- factors Moore’s prior prejudice, issues, theft strong convictions do fair confusion of and mis- have impeachment leading value. fact under The that Hauer- Rule 403. We land has had agree no further difficulties on with with the State this issue. weigh against the law their admission. decisions to We review admit exclude potential third factor focuses evidence under an abuse-of-discretion prejudice for unfair similarity due to standard. Torres v. past conduct conduct at issue in *9 (Tex.Crim.App.2002). 760 not We will re- present litigation. the The of absence sim- ruling verse a which lies “the within zone ilarities between Hauerland’s theft convic- of disagreement.” reasonable Id. tions and his conduct on the occasion in no A witness who testifies to an question significant danger indicates of good prejudice may unfair other’s character be cross-exam this basis. Hauer- land’s to testimony important ined test the witness’s awareness of specific State’s case but not essential relevant instances of because oth- conduct. 405(a); State, er witnesses much corroborated of his tes- Tex.R. Evid. v. 71 Wilson timony. reason, 346, For the same (Tex.Crim.App.2002). Hauer- S.W.3d 350
314 (Tex.Crim. 782, State, v. 628 S.W.2d 788 of has two right This cross-examination (1) State, 257, must be 67 prior App.1982); the instances v. S.W.3d limitations: Morris issue; and 2001, to a trait at relevant character [1st Dist.] 263 (TexApp.-Houston (2) a must have basis prior refd). the instances However, evidence of those pet. Wilson, agree at S.W.3d 350. We fact. 71 proba if may be excluded their convictions right this the contention that State’s substantially by outweighed tive value is is also limited of cross-examination danger prejudice. the unfair See Mo of v. 991 S.W.2d Rule 403. See Mozon zon, 846; Tex.R. Evtd. 403. 991 S.W.2d (evidence 841, ad- (Tex.Crim.App.1999) 846 ex- may under Rule 404 still be missible analysis, conducting a Rule 403 403); McCoy v. under Rule see also cluded (1) compellingly how the we examine: 50, (Tex.App.-Amarillo 53 a to make fact challenged evidence serves (“Rule merely delineates pet.) no 405 (2) probable; or consequence of more less character the manner which admissible challenged evidence has the the potential may prov- evidence be or character trait but jury “in some irrational impress the en.”). (3) way”; the time nevertheless indelible undisputed It is that Moore established develop the will need proponent convictions. prior for the a factual basis evidence; propo the force Thus, analysis to the issue limit our we ie., evidence, does the need for nent’s are prior convictions relevant whether evidence probative have other proponent if so truthful character and to Hauerland’s help to him to establish fact available probative value of the convic- whether Manning v. 114 consequence. substantially by the outweighed tions is Mo (Tex.Crim.App.2003); S.W.3d one of the danger prejudice unfair zon, at 847. in Rule considerations enumerated other here consequence fact at issue The 403. truthfulness. character Hauerland’s is not conviction prior DWI more theft convictions are Because the truthful character relevant to Hauerland’s old, they compel- years’ do not than ten for a crime it is not conviction because his truthful character establish that lingly turpitude. Shipman See involving moral 609(b); see also Evid. bad. Cf. Tex.R. (Tex.Crim. State, 604 S.W.2d Theus, conviction (prior at 881 S.W.2d 1980); Lopez App. Op.] [Panel impeachment probative more no (Tex.App.-Austin is recent and past “if the crime State, 11 Perez v. see also pet.); propensity has demonstrated witness (felony DWI (Tex.Crim.App.2000) law”). running afoul XVI, § 2 of under art. “high crime” Const, not involve it does Tex. because prior convictions The remoteness “dishonesty”). corruption” “moral they any potential also tends to diminish its court did not abuse discretion in some impressing may have for refusing permit Moore cross-ex require Moore would improper manner. witnesses character amine State’s very question little witnesses time DWI conviction. about the familiarity their with Hauerland’s about Moore called other prior theft convictions. Conversely, the theft convic *10 Hauerland’s testified that witnesses who to truthful Hauerland’s tions are relevant good. was not for truthfulness character are they because convictions character State’s to Thus, his need cross-examine Bowden turpitude. moral involving crimes regarding prior witnesses Hauerland’s and the This not events State’s. does convictions was lessened. attack on constitute an Moore’s character for truthfulness. Id. no of abuse weigh equally Because these in factors Accordingly, discretion is shown. we over- against favor of permitting and cross-ex- issue. rule Moore’s second regarding prior amination convictions 609(b) Rule because authorized the REQUESTED JURY INSTRUCTIONS exclusion of the impeach- convictions for fifth Moore contends his issue that ment of Hauerland on while was by overruling request- the court erred his stand, say we cannot that the court abused jury duty report ed instructions to by refusing its discretion to allow the neglect or child abuse and the confidential- Accordingly, cross-examination. we over- ity of information in the course of obtained rule Moore’s first issue. investigation suspected an abuse ne- glect. eighth He contends issue that MOORE’S CHARACTER WITNESSES by refusing charge the court erred Moore contends in his second is on assault threat as a lesser-in- sue that the court its abused discretion cluded offense of retaliation. refusing permit present him to wit testify nesses to about his character for Neglect Report Duty to Abuse OR truthfulness. Because the did State not Confidentiality Information truthfulness, attack Moore’s character for The trial court denied Moore’s re no abuse of discretion is shown. quest regarding to instruct the jury 608(a)(2) Rule provides that evidence of duty report child suspected abuse or a witness’s truthful character is admissible neglect3 confidentiality and the of informa if the witness’s truthful character has been investigation tion obtained sus attacked. Moore contends that his truth- pected neglect provided by abuse as ful character was attacked the State’s appears sought statute.4 It that Moore “vigorous” cross-examination. support these instructions to his conten tion that lawfully Hauerland could not re Unless State’s cross-examina quire counseling Karen release her rec directly tion of a defendant implicates acting ords to him and thus not truthfulness, defendant’s character public question. servant on the occasion in exposing cross-examination inconsistencies requested Because the instructions served between the testimony defendant’s and the only to negate public servant element State’s does not constitute an at charge, court retaliation the trial tack on the defendant’s truthful character was not required to submit them. 608(a)(2). under Rule Stitt v. 845, (Tex.App.-Texarkana 848-49 defensive “[A] instruction refd); pet. Spector v. 746 required question when the issue in is not (Tex.App.-Austin 950-51 statutorily-enumerated defense refd). pet. merely negate serves elements
Here,
the State’s
cross-examination did State’s
case.” Ortiz
nothing
denied,
more than illuminate the inconsis- 92 (Tex.Crim.App.2002), cert.
tencies between
Moore’s version
U.S.
S.Ct.
(2003). do requested not instructions under a offense threat lesser-included statutory or affirmative implicate defenses 37.09(2)because, allega without the article Rather, only they would serve defenses. servant, a public tion that Hauerland was servant element negate public resulting con disputes, which Moore Thus, the trial court offense retaliation. “a threat to the poses less serious duct refusing the instructions. not err in did reject contention person.” this We same fifth is- Accordingly, we overrule Hauer- The issue of whether on its face. sue. as a servant on the acting public land was no effect on the question in has occasion Offense Instruction on Lesser-Included of the threat Moore made to seriousness denied Moore’s The trial court likewise way, the threat was him. Stated another by for on assault request an instruction status. regardless same of Hauerland’s of retal- offense threat as lesser-included eighth Accordingly, we overrule Moore’s of- An offense lesser-included iation. issue. if:
fense FAILURE TO DISCLOSE (1) by proof of the it is established BRADY5 EVIDENCE required or all the facts same less than in contends his ninth issue the of- the commission of establish its discretion the trial court abused charged; fense mistrial due denying his motion for (2) charged it differs from the offense trial that to disclose before failure State’s serious respect in the less only for had been indicted of its witnesses one injury or to the same injury risk of responds that The State burglary 1991. public suf- person, property, or interest not this contention preserve Moore did commission; fices to establish its to re because he failed appellate review (3) charged it differs from the offense the evidence quest a continuance when culpable pres Because respect light that a less came to trial. only first that a requirement a systemic to establish its “is state suffices ervation mental ordinarily appellate court should commission; first-level motion,” begin will its we review on own attempt commit it an consists of did that Moore contention with the State’s otherwise in- charged the offense See for our review. preserve not this issue cluded offense. (Tex. 1, 2 n. 1 Jones v. 37.09 (Ver- Ann. art. CRiM. PRoc. Tex.Code Crim.App.1997). 1981). non suggested has this Court plurality A is not a lesser- Ma- “Brady threat claims should fall under Assault ‘pre- article of retaliation under one and need be category included offense rin’s6 37.09(1) requires Keeter v. appellate threat review.” because assault served’ (Tex.App.-Waco 144 place the victim a threat intended to (footnote harm, granted) (plurality) whereas retaliation pet. fear imminent added). consideration, con- we further imminent On require does not a threat disclo- right that a defendant’s clude Helleson v. harm. d). Brady under exculpatory evidence ref pet. sure Worth (Tex.App.-Fort (Tex.Crim. Md., S.W.2d 275 6. Marin v. S.Ct. Brady v. U.S. 5. (1963). App.1993). L.Ed.2d 215
317
State,
right
category
(Tex.Crim.App.1999); Taylor
is a
two
in the Marin for-
v.
93
487,
right
mulation because this
can be waived
(Tex.App.-Texarkana
502
S.W.3d
2002,
must
implemented
refd);
but
be
even
not re-
pet.
Yates v.
941
quested.
1997,
357,
(Tex.App.-Waco
pet.
364
S.W.2d
refd). However,
not appear
it does
that
Marin,
Ap-
the Court
Criminal
any of these decisions considered this issue
peals
categories
rights
identified three
under Marin.
the Su
When we examine
(1)
possessed by criminal defendants:
ab-
preme
Brady jurisprudence
Court’s
in
requirements
prohibitions
solute
and
preservation requirements
light
es
(2)
forfeited;
which cannot be waived or
(which
tablished
have
re
Marin
been
rights
implemented
which must be
unless
cently
reaffirmed
the Court Criminal
waived;
rights
expressly
which will
Appeals), we must conclude as stated that
implemented only
be
upon request.
851
a
rights
Brady
defendant’s
under
fall with
275,
(Tex.Crim.App.1993);
279-80
S.W.2d
in category two under Marin. According
359,
accord Sanchez v.
120 S.W.3d
ly,
Brady
we review the merits of Moore’s
(Tex.Crim.App.2003). Only rights
366
claim.
category
“preserved”
the third
must be
for
Marin,
appellate review.
851
at
S.W.2d
A Brady violation occurs when
279;
Sanchez,
accord
120
at
366-
fails
exculpatory
State
to disclose
in
67.
formation “unknown to the defense.”
Supreme
Court
the United States
(Tex.
809,
Hayes v.
815
held that
pleads
has
a defendant who
Crim.App.2002)
Agurs, 427
(quoting
U.S.
guilty can
right
Brady
waive his
evi-
103,
2392). Here,
96 S.Ct.
Ruiz,
dence. See U.S.
536 U.S.
informed
counsel
the trial court that he
628-33,
122 S.Ct.
Brady However, are “waivable.” viously indicted. Because Moore was Court also has held that Brady evidence aware information which he con must be provided defense, even if improperly tends State failed to dis requested. Greene, Strickler v. 527 close, Brady no violation is Id. shown. 263, 280, U.S. 119 S.Ct. 144 L.Ed.2d Accordingly, we overrule Moore’s ninth is (1999); 286 v. Agurs, U.S. 427 U.S. sue. 103-07, 96 S.Ct. L.Ed.2d judgment. affirm the We (1976). Given these two components of the Supreme Brady Court’s jurisprudence, we concurring Chief Justice GRAY conclude that a right defendant’s to excul- dissenting. patory Brady evidence under category GRAY, Justice, TOM Chief right concurring two the Marin formulation. dissenting Therefore, granting order motion Brady claim need pre- not be Marin, rehearing. appellate served for review. 279; Sanchez,
S.W.2d at
accord
Finding
nothing
the motion
re-
at 366-67.
hearing
my
me
change
that causes
anal-
True,
courts,
one,
Texas
including
ysis,
this
I
deny
would
the motion for rehear-
previously
Brady
have
held
proce
ing
entirety.
claims
in its
Finding nothing wrong
durally defaulted
original analysis
because
the defen
Court’s
af-
request
dants’ failure to
judgment,
majori-
continuance.
firmed the
as does the
E.g.,
ty’s
analysis,
Wilson
adopt
new
I will
the Court’s
*13
(7)
evidence,
the denial of
opinion.
cy of the
his
original analysis
nay concurring
that the State elect between the
analysis
necessary.
pause
request
is
I
No further
(8)
indictment,
of
denial
majority’s
to
counts
the
the
only to note that the
decision
two
requested
simple
his
instruction on
as-
Brady
type
in the
two of
place all
violations
(9)
sault,
denial of
and
the
his motion
category of
under Marin flies
violations
discovery
violations.
af-
Ap-
Criminal
mistrial
We
the face of Texas Court of
firm.
Brady Maryland,
v.
peals precedent. See
83,
1194,
373 U.S. 83 S.Ct. Sufficiency of the Evidence State, (1963); 275 Marin discovery issue, See viola- (Tex.Crim.App.1993). In Moore contends that his sixth majority to tion The fails legally discussed below. of retaliation and the evidence was Brady become distinguish violations that In factually particular, insufficient. Moore apparent during trial from those are complains the was insuffi- not until after trial. discovered he to harm Hauer- cient that threatened land, against intended retaliate is of our original What follows the text Hauerland, pub- that Hauerland a and was analysis, slight when with modifications legally lic servant. evidence was necessary to that it is now a concur- reflect factually sufficient. ring opinion. Standard Review of Kerry involved Eugene Moore became Hauerland, of “legal sufficiency A the evidence re- in a su- dispute with Johnnie of any weighing not involve fa- Independent of the view does perintendent Venus District, and non-favorable evidence.” paycheck the of vorable over final School State, wife, Margraves v. 917 a former of Venus employee indictment, (Tex.Crim.App.2000) (citing Cardenas v. By a Moore ISD. two-count felony pub- (Tex.Crim.App.2000)). a S.W.3d 384 charged with assault on 30 Instead, legal sufficiency a review calls See Tex. Penal lic servant and retaliation. (Vernon (b)(1) 2003); 22.01(a), reviewing view the evi- upon § the court to Ann. Code 36.06(a) (Vernon 2003). light the most jury § A found dence in favorable id. assault, ration- any of and determine whether guilty of verdict guilty fact could have found essen- punish- al trier of the jury retaliation. The assessed his a beyond elements of the crime rea- years’ imprisonment and tial ment at three Id.; dollars, doubt. see also Jackson v. and recom- sonable fíne of ten thousand 61 443 99 Virginia, the and fíne be U.S. S.Ct. imprisonment mended that (1979); 560 Mason v. 905 L.Ed.2d probated. (Tex.Crim.App.1995). issues, presents nine several (1) challenge factual reviewing the the multiple questions: present which evidence, sufficiency begin we of his cross-examination limitation legally assumption that the evidence is to Hauerland’s charac- State’s witnesses as (2) ter, Santellan of his character wit- sufficient. See exclusion (3) We (Tex.Crim.App.1997). nesses, impeachment denial of of S.W.2d (4) convictions, without the the must view all the evidence prior Hauerland light most favorable prism indict- “in quash denial of his motion (5) See Clewis v. ment, prosecution” construct. requested the denial of his (Tex.Crim.App. duty child report instructions on the 1996). review ask neutral counseling “whether confidentiality and the We abuse evidence, against records, all both for and factual sufficien- of legal (B) finding, proof person reported demonstrates that the who has guilt obviously report so weak as to undermine who the actor knows intends to determination, jury’s confidence a crime. the occurrence of the proof guilt, although adequate 36.06(a). § Tex. Penal Ann. Code alone, taken greatly outweighed by con *14 Code, turn, “public in The Penal defines trary proof.” Johnson follows, part: servant” as in relevant 1, 11 (Tex.Crim.App.2000); see also Good elected, selected, person appointed, a (Tex. man v. or employed, designated otherwise as Crim.App.2001). following, of if one even he has not
We cognizant yet qualified must also remain of the for office or assumed his unique position-one factfinder’s role and duties: reviewing
that the court is unable to occu- (A) officer, employee, agent an or of Johnson, 23 py. jury S.W.3d 9. The government; or credibility of determines the the witnesses all, some, may “believe or none of the (F) person a a performing gov- who testimony.” Chambers v. ernmental function a claim of under S.W.2d 461 (Tex.Crim.App.1991). It although right legally he is not qualified is the jury accepts rejects or reason- to do so. ably equal competing theories of a case. (Ver- 1.07(a)(41) § Tex. Penal Ann. Code Goodman, 66 at 287. A decision is 2003). non manifestly unjust as to the accused alleged The indictment retaliation merely because the factfinder resolved followingterms: conflicting of views evidence in favor of Kerry Eugene Moore ... did ... inten- State. Cain tionally knowingly or to harm threaten (Tex.Crim.App.1997). another, Haverland, public to-wit: J. a
Penal Code: The Offense servant, an by unlawful act retaliation The Texas Penal Code creates of- or account the services or fense of obstruction or retaliation as fol- status of the said J. as Haverland a lows: servant, public superintendent to-wit: District, Independent Venus School A person commits offense if he Venus, Texas, being said unlawful act
intentionally knowingly or or harms Haverland, harm J. and said threat was threatens to harm another an unlaw- in per- communicated to J. Haverland ful act: son .... (1) in retaliation for or on account of abstractly The trial court instructed the
the service or status another as a: follows, in part: as (A) servant, public witness, pro- provides person Our law that a com- witness, spective informant; or or mits the offense of Retaliation (B) person reported who has or person intentionally knowingly or who the actor report knows intends to harm threatens to another an unlaw- crime; the occurrence of or ful act retaliation for or on account of prevent delay or the services of person public the service of a aas serv- another as a: ant. (A) servant, public witness, pro- “public The term means servant” witness, informant; elected, spective selected, or person appointed, em- operating ISD. As chief officer re- designated as an Venus ployed, or otherwise board, porting superin- the school officer, govern- employee, agent overseeing job person- tendent had ment. nel. instructed that J. Haverland You are and, public
is a servant. Moore demanded the check testimony and other wit- of Hauerland instructed that the superin- You are nesses, he have the check said that would acts public school district tendent of “kick Hauer- from Hauerland or would discharge within the lawful official testimony By the Iand’s butt.” duties, long acting so within the as witnesses, Hauerland poked State’s capacity superintendent. *15 chest, clothes, grabbed him his instructed that the adminis- You are against him a wall and onto the and threw involving matters tration of financial only he ground. testified that ei- Moore capacity and school district is within lightly gestured ther at Hauerland superintendent official duties of threatening him. Moore denied touched said district. Hauerland, testify he but did that accused application paragraph The trial court’s authority in or- misusing Hauerland the indictment. language tracked the Thereafter, wife. der to harm Moore’s Evidence case, any up and Hauerland ended Moore ground top, Moore on -withhis on the Before as follows. The was strike Hauerland. At fist drawn back to wife, Karen, had resignation, her Moore’s workers summoned point, this office a counselor the Ve- employed been as others to maintenance man and school nus At the time of Karen ISD. aid, to Hauerland’s and called the come resignation, dispute was a over a there Department. Venus Police report suspected new that teachers policy re- child to school officials before abuse he realized that testified that Moore it, statute, required by relented, porting as doing wrong, what he was was law or other appropriate enforcement voluntarily. The State’s wit- left and agency. nesses, however, See that testified Moore had Tex. Fam.Code Ann. (Vernon 2002). 261.101, §§ When Hauerland, 261.103 physi- and pulled to off of be confi- resigned, she Karen Moore retained The property. off of school cally escorted main- that she had dential student records that as Moore witnesses testified State’s employment. of her tained the course he that after away, said being escorted provision Relying on a of Venus ISD’s “get” to come back he made he would bail contract, Hauerland employment standard Hauerland, they took this as a threat final un- paycheck Karen Moore’s withheld saying Moore denied to kill or harm him. til returned or accounted the files. only she this; had said Moore testified that he at- ISD and the Moores consulted Venus by legal get he would satisfaction exchanged correspondence torneys, who means.
regarding dispute. attorneys testified Each called who side incident, legally Kerry ISD could to whether Venus
On the date of the civil at- The Moores’ to offices to withhold the check. Moore went the Venus ISD withholding torney that the try get payroll his wife’s check. testified to under illegal garnishment an that Moore would have check was director told Moore contract; attorney for Venus ISD speak with Hauerland. Hauerland was void legal withholding was superintendent of testified that the employed then as the provi- First, enforcement of a valid challenges contractual Moore the factual suffi- sion. ciency evidence that he threatened Contrary harm Hauerland. to the testi- Legal Sufficiency: Application mony of several witnesses that Moore First, challenges Moore suffi- legal to “kick threatened Hauerland’s butt” and ciency of the evidence that he threatened Hauerland, to “get” to harm thus harm Hauerland. State’s witnesses tes- Hauerland, points only Moore to his testi- tified that “kick Moore threatened to mony denying he made those state- butt” if Hauerland’s Hauerland did ments. check, give him the and threatened to “get” Next, challenges Hauerland. Those testi- Moore witnesses factual suffi- they ciency fied understood those statements evidence that he intended to against as threats harm Hauerland. Contrary retaliate Hauerland. testimony of several witnesses that Next, challenges Moore the legal suffi- Moore threatened to harm Hauerland ciency of the evidence that he intended to give check, did not again against retaliate Hauerland. testi- harm threatened to Hauerland after he fied that he told Hauerland that he was *16 check, give to refused Moore the Moore wrong to use authority his to withhold the points only testimony to his denying that check to harm the Moores. Moore threat- he made those statements. ened to harm give Hauerland if he did not check, Moore the and threatened to harm Lastly, challenges Moore the factual suf- Hauerland after give to refused Moore ficiency of the evidence that Hauerland the check. acting was as a public servant. Hauerland that employed testified he was as school
Lastly, Moore challenges the suffi- legal superintendent, inwas his office perform- ciency of the evidence that Hauerland was ing approached by his duties when he was public In particular, servant. Moore Moore, and was a valid enforcing contrac- argues that acting Hauerland was not as a him provision tual that allowed withhold public in withholding servant the check. the An attorney check. also testified that incident, At the of time the Hauerland was the provision contractual was An- valid. employed ISD, as superintendent of Venus attorney other organization and a teachers was at work in his office in the Venus ISD representative provision testified that the building, administrative and was perform- was void and unenforceable. ing his duty of supervising personnel, both when he ordered the check withheld On of challenged by none the elements when respond he came to inqui- to Moore’s factually Moore was the evidence so weak ry about the check. as to undermine confidence in the verdict.
As to each of challenges Moore’s argue the Moore does not proof that the legal sufficiency evidence, of the viewing those outweighed by contrary elements is light Thus, proof. most favorable to I would overrule Moore’s a rational factfinder could have sixth issue. beyond found doubt reasonable the ele- Thus,
ment that challenges. Moore Impeachment State’s legally evidence was sufficient. CHARACTER WITNESSES Factual Sufficiency: Application issue, In his first Moore contends that argues
Moore also that the evidence was court sustaining trial erred in factually to support objection too weak attempted the verdict. State’s Moore’s cert, denied, 965, 123 App.2002), 538 U.S. of the State’s character
cross-examination
(2003);
pre-
was aware that Hauerland had twice been trial A regard, In this court erred. theft; and testified convicted of Cervantez subject to proper character witness had that Hauerland had that she heard *17 of the wit- on the basis cross-examination As Rus- been convicted of theft. to twice of the knowledge of the character ness’s sell, objected generally im- the to State testify- person about whom the witness As to all of these proper impeachment. subject impeach- to ing. Any witness is witnesses, dan- objected the State that the of means Tex.R. Evid. 607. One ment. ger prejudice unfair of evidence of these of of impeachment is the basis to undermine substantially outweighed their convictions subject of of the knowledge the witness’s impeachment. See probative value thus, witness, testimony. A character the The trial court sus- Tex.R. Evid. 403. character, good person’s to a who testifies objections. tained the specific on subject to cross-examination trial complaint at preserved his person instances of conduct witness, by an of making each offer a charac- good would be inconsistent with of excluded evidence. See Tex. proof 405(a); v. Wilson ter. Tex.R. Evid. R.App. 33.1(a); 103(a)(2); P. Tex.R. Evid. 346, (Tex.Crim.App.2002); 71 350 S.W.3d (Tex. 1, State, 969 2 Warner v. S.W.2d (Tex. 926, State, 4 930 Murphy v. curiam); Al- Crim.App.1998) (per see also d). 1999, general, In a App.-Waco pet. ref (Tex. 67 355 onzo opin- her to his or witness who testifies as on pet. granted other App.-Waco subject to a character is person’s ion of grounds). of the form questions cross-examination know”; is, asking questions
However, complaint you in “do Moore forfeits knowledge the character witness’s part appellant pres- An who whether appeal. on knowl- person’s of character includes appeal than that ents an issue on other by the committed specific of bad acts presented edge in the trial court forfeits the Tex.R.App. 350; at Murphy see 33.1; Tur- at person. on P. Wilson appeal. issue (Tex.Crim. 932. ner v.
There are at least two on (Tex.App.- limitations d). of ref impeachment opinion pet. character Waco wit- ness of conduct. specific instances analyzing harm from the erroneous “First, inquired the incidents about must exclusion of defense cross-examination of be relevant to the character traits at issue. witness, begins a court with the State’s Second, alleged bad act must have a assumption damaging potential that “the (internal basis fact.” at Wilson fully examination real- w[as] cross omitted); Murphy citation accord at 930- Arsdall, at ized.” Van U.S. 31. 1438; at The Young S.Ct. 948. court following then considers factors: sought impeach Moore properly Rus- (1) of importance the witness’s testi- knowledge sell with his of Hauerland’s case, in the mony prosecution’s theft convictions in with the accordance (2) testimony whether the was cumula- Rules Evidence. Hauerland’s bad acts tive, impeach that Moore to use wanted Rus- knowledge (3)
sell’s of Hauerland’s character presence or absence fact, had basis in since Hauerland admit- corroborating contradicting ted the theft convictions. Those testimony convic- the witness material tions were relevant to points, Hauerland’s charac- truthfulness; ter for among theft is (4) the extent cross-examination oth- damning most of deception. crimes permitted, erwise the trial court erred sustaining the strength prosecu- overall objection State’s improper impeach- tion’s case. ment. Id. Under assumption light this factors, however, error, these the court must determine is harmless. Im- error beyond whether the was harmless proper limitations on vi- cross-examination Tex.R.App. Id.-, reasonable doubt. P. olate the confrontation clauses of the Unit- *18 44.2(a). Constitutions, ed States and Texas and implicate
thus the constitutional standard that, we assume had Russell testi- for harmless error review. See U.S. fied before the as he its had outside Const, Const, VI; 10; I, § amend. art. Tex. presence, he would have testified that he Tex.R.App. 44.2(a); Lopez P. v. shoplifting knew about one of Hauerland’s 220, 222 (Tex.Crim.App.2000). citations and did not know about the other. standard, Under that appeals court of However, three testified defense witnesses finds “constitutional subject error that is poor that Hauerland had a for character review, ap- harmless error the court of truthfulness, impeached and Moore further peals judgment must reverse a of convic- Hauerland a prior inconsistent state- tion ... unless the court determines be- ment. other Two witnesses than Russell yond a reasonable that the error doubt did good testified as to Hauerland’s character not contribute to the conviction.” Moreover, for truthfulness. Hauerland’s Tex. R.App. 44.2(a). P. A confrontation clause testimony regarding the elements of the subject error violation to harmless anal- by offense was corroborated several other Arsdall, ysis. Delaware v. Van witnesses, U.S. only and was contradicted 1431, 1438, 106 S.Ct. 89 L.Ed.2d Moore’s bald denials. The trial court oth- (1986); Young v. generally 891 S.W.2d erwise allowed free cross-exami- Shilling Lastly, 948 (Tex.Crim.App.1994); strength see nation. overall sought apparent State’s well-corroborated was he to offer was from the evidence Tex.R.App. factors, 33.1(a); overwhelming. light P. these context. Tex.R. 103(a)(2). in excluding trial court’s error Evid. beyond evidence was harmless a reason- Evidence of Truthful Character I able doubt. would overrule Moore’s first provide The Texas Rules of Evidence for issue. impeachment and rehabilitation credibility: witness’s Limitation of Moore’s CHARACTER The credibility may a witness be Witnesses supported by attacked or evidence in the issue, In his second Moore contends that of opinion reputation, form but sub- in sustaining trial court erred ject to these limitations: objections to State’s Moore’s offer of evi- may only the evidence refer good being dence of his character for for truthfulness or untruth- character truthful, opinion and his offer of evidence fulness; and of his for good being peaceful character (2) evidence of truthful character is erred, law-abiding. If trial court after the character only admissible the error was harmless. truthfulness has been witness for attorney began pres- Before Moore’s reputation opinion or evi- attacked case, ent his he informed the court that dence or otherwise. intended to call character for witnesses 608(a). Tex.R. Evid. good being peaceful, Moore’s character for argues cross-ex- that the State’s law-abiding, and truthful. ob- The State amination jected impeached credibility of him character peaceful- that Moore’s issue, attacking ness his character truthfulness. not at was that Moore’s can, in “Vigorous prin- yet had cross-examination” credibility impeached. been ciple, effectively impeach a witness’s credi- testimony court limited the of Moore’s bility. See Duckett reputation character witnesses (Tex.Crim.App.1990), 918-19 over- character. Moore’s on grounds, ruled Cohn other pastor, Moore called his who testified (Tex.Crim.App.1993). reputation direct examination However, evidence of character before for being peaceful law-abiding to rehabilitate truthfulness admissible case, good. in his Moore testified main credibility, impeached witness’s and the cross-examined him. State There- *19 must impeachment method of have at- after, attorney again Moore’s offered evi- for truthful- tacked the character witness’s dence of character truthful- Moore’s for ness, testimony. not 1 just witness’s the objected ness. The State that this was al., Steven et Texas Practice: Guide Goode improper bolstering. The trial again court § 608.2 the of Evidence Texas Rules to reputation limited the evidence evidence (3d ed.2002). opinion testi- Reputation of character for being peaceful mony character for to the witness’s law-abiding. and the witness impeaches untruthfulness for Thereafter, friend, Moore called who 608(a); purposes merely contra- of Rule reputation being testified that Moore’s for testimony dicting by the witness’s cross- peaceful law-abiding good. generally examination does or otherwise trial, 845, complaints his 102 preserved Moore at not. Stitt v. S.W.3d 848 refd); (Tex.App.-Texarkana pet. testimony since substance the the
325 (Tex. State, (TexApp.- 4 Spector S.W.3d 932-33 refd). 1988,pet. refd); App.-Austin pet. Goode, Waco Guide to 405.2.2, § the Texas Rules of Evidence The cross-examination of Moore was 266-67. unexceptional, particularly vigor- and not Moreover, pointed ous. while the State trial Although permit the court did not out contradictions within Moore’s testimo- opinion evidence of his present Moore ny testimony and between Moore’s being peaceful character for and law-abid- witnesses, that of other State not did reputation ing, permit the court did evi- directly attack Moore’s for character opin- suggest dence. Moore does not how Thus, truthfulness. court not trial did preferable to ion evidence would have been excluding its abuse discretion evidence evidence, reputation and we do not see of Moore’s character for truthfulness. Indeed, it even how would be. under Opinion Evidence Peaceful and Law- law, common evidence was consid- opinion
Abiding Character reputation inferior ered evidence. § excluding If the trial court 405.2.2. Moore’s “substan- opin- erred Goode being rights” by ion evidence of Moore’s character for tial limita- were affected peaceful law-abiding, the error was peaceful tion evidence of Moore’s char- harmless. reputation acter to evidence. See Tex. R.App. 44.2(b). P. The Rules of an provide Evidence for exception general prohibition I would overrule issue. Moore’s second against character for conformity evidence pertinent of a “[e]vidence character trait Impeachment of HaueRland ... by offered in a accused criminal by PRIOR Convictions case, by prosecution to rebut issue, In his third contends 404(a)(1). same.” Tex.R. Evid. pros- sustaining the trial court erred in violence, ecution for a crime of the defen- objection impeachment State’s being dant’s character for peaceful perti- prior Hauerland evidence of convic- nent, since of peaceful evidence character tions. The trial court did not its abuse likely it makes less the defendant sustaining objection discretion in committed the crime. example, For “[i]n evidence of remote convictions. case, reputation murder for accused’s peacefulness, behavior, or non-aggressive Hauerland testified on ex- Before direct appropriate inquiry.” Wheeler amination, predicate laid the (Tex.Crim. 882 n. impeaching Hauerland App.2002) (quoting Valdez v. prior See convictions theft. Penal Tex. 520 (TexApp.-Houston [14th 31.03(a) (Vernon 2003). § On Ann. Code refd)). 1999,pet. Dist.] cross-examination Moore outside the jury, presence Hauerland testified generally
The Rules of Evidence also that he had shoplifting been arrested for provide that when character evidence is *20 admissible, and and been a had issued may only it on proved be direct a in court paid municipal citation and fine “by testimony reputation examination toas in by testimony in each case. Hauerland testified that opinion.” the form of an 405(a). Rules, a had not been convicted of crime since. Under the Evid. Tex.R. moreover, rigid request the common-law The trial court overruled Moore’s distinc- opinion reputation tion between and to cross-examine Hauerland with the re- evi- dence has v. Murphy jury’s presence. been relaxed. See mote convictions the (2) proximity the
Thus, past the of preserved complaint temporal Tex.R.App. 33.1(a). subsequent the P. crime and witness’s review. See history, criminal generally The Texas Rules of Evidence (3) similarity past the the between a provide impeachment for the of witness being prose- the crime and offense prior of witness’s convic- evidence the cuted, tions: (4) importance of the the witness’s testi- purpose attacking For of the cred- the mony, and witness, the ibility of a evidence that credibility has convicted of a crime importance witness been of the is- the the if elicited from shall be admitted sue. by public record
witness or established (Tex. Them v. felony or only if the crime a but State, 21 Crim.App.1992); White v. of turpitude, regardless involved moral refd). (Tex.App.-Waco pet. punishment.... of crimes of de- impeachment The value 609(a). general The rule high, prejudicial effect ception is their Evid. Tex.R. ten years that such convictions within the than that of crimes of violence. is lower testimony 880; prior to are admis- passage the witness’s Them at at 647. The White only if the trial “court determines sible the last convic- of time between witness’s this probative admitting the of value the of the witness’s testimo- tion and time outweighs prejudicial its proba- effect conviction’s ny tends to reduce the similarity prior a Id. “remote” convictions party.” For of the tive value. Id. however, old, years more more than ten a is not charged conviction and the offense where, here, stringent applies: standard the does applicable witness Lastly, with an offense. charged not stand of conviction under this Evidence a testimony, the importance of witness’s if more period rule is not a of admissible of the witness's importance and thus the years ten has since elapsed than with the corroboration credibility, decrease of of date the conviction release evidence; other and so testimony im- the witness from confinement value of evidence probative decreases conviction, whichever is posed for Id. of the convictions. witness’s date, court deter- the later unless the mines, justice, in the interests of prior ruling admissibility of In on the probative value the conviction impeachment, the trial convictions for facts and circum- supported specific 881; at discretion.” Them court has “wide substantially outweighs prej- its stances appellate court at 646. White udicial effect. only ruling “clear may reverse such at 881. The of discretion.” Them abuse 609(b). The balancing Tex.R. Evid. ruling its discretion trial court abuses probative prejudicial effect value only admissibility of such evidence prior convictions evidence of witness’s of reason- ruling lies “outside the zone is the usually arises where witness Id.; White 646. disagreement.” able cases, weighing defendant. those probative prejudicial effect value turpitude. is a crime of moral Theft convictions, court evidence of the trial (Tex. 782, 788 Bowden several factors: should consider Crim.App.1982); Jackson (1)the (Tex.App.-Fort Worth impeachment prior value *21 refd). crime, pets. in in excluding appeal presented
The trial court did not other than that the err appeal. evidence of Hauerland’s remote theft con- trial on court forfeits the issue Tex.R.App. Turner, 33.1; victions. The dates of convic- Hauerland’s See P. record, parties 117;
tions are not the the but at 571. Montoya, 43 S.W.3d at dispute do not that the convictions were trial, At the indict- complained Moore themselves, remote. Hauerland’s two the means of ment’s notice of manner and petty citations for theft some thirteen or the unlawful act that he threatened to trial, years any fourteen before without against appeal, commit Hauerland. re- On convictions, intervening little bearing have lying complains on Doyle Moore on present credibility. Hauerland’s More- the the indictment’s notice of manner over, five at least other witnesses testified and means which he communicated the against to Moore’s threats Hauerland. Doyle threat to Hauerland. See Thus, the trial court did abuse its (Tex.Crim.App.1983) finding probative discretion that the val- curiam). (per appeal, argues, On Moore ue of outweigh the convictions did not trial, “Prior Ap- to the commencement of danger prejudice. unfair I would over- pellant specific to was entitled know rule third Moore’s issue. act constituted threat. unlawful verbal, i.e., Was the act made statement Motion Indictment Quash by Appellant, physical or was the act some issue, In his fourth Moore contends that part conduct Appellant, per- on the the trial in overruling court erred Moore’s complainant?” ceived as a threat quash motion to the indictment. Moore This appeal comport issue on does not with forfeits on appeal. his issue complaint Moore’s at trial. I would trial, Prior to Moore filed motion to overrule fourth Moore’s issue. quash grounds the indictment on the that: alleged It is in COUNT TWO of the JURY INSTRUCTIONS Indictment the defendant did issue, In his fifth Moore contends that another, harm threaten to to-wit: J. overruling trial court erred in Haverland, servant, public “by an un- requested jury duty instructions on the lawful ... act [.]” Said COUNT TWO report confidentiality child abuse allege[ any fails to ] manner and means issue, of counseling eighth records. In his by which the Defendant committed an argues the trial court erred in “unlawful act.” overruling requested instruction on trial, day On the presented Moore simple as a assault lesser included offense. court, motion trial to the and argued, The court did not err. act alleged just “there’s no I and was The Texas Code of Criminal Procedure asking for the manner and means of the requires that the trial court instruct act, unlawful that it be with specific- stated jury on applicable the “law to the case.” ity give notice of us what we’re accused (Ver- Ann. art. 36.14 Tex.Code Crim. PROG. of.” The trial court overruled motion. Supp.2004). non preserved complaint thus Defensive Instructions Tex.R.App. 33.1(a). trial. See P. complaint
But ap- Moore forfeits his on requested special charges two peal. presented appeal writing Moore’s issue prior the submission of the comport does not complaint. charge jury. his trial requested His instruc- An appellant presents who duty report issue on tion on the suspected child
328 22.01(a)(2). § The neglect the lan- Tex. generally abuse or tracked Penal Ann. Code Thus, Family guage request. of Texas Code Sections trial court denied 261.103, 261.101, and 261.105. See this trial. preserved complaint Moore at Tex. 261.101(a)-(b), 33.1(a). Tex.R.App. §§ See Fam.Code Ann. P. 261.105(a) (Vernon 2002). 261.103(a), His analysis an of whether instruction confidentiality requested instruction on the required has on lesser included offense is investigations suspected of child abuse of State, v. 71 steps. two Feldman S.W.3d loosely Family of language tracked the Aguilar 738, (Tex.Crim.App.2002); v. 750 261.201(a) § Code 261.201. See id. Section State, (Tex.Crim.App. 558 (Vernon 2002). The trial court overruled 1985). First, the court must “decide Thus, requests. preserved Moore Moore’s actually lesser- whether offense Tex.R.App. complaints these at trial. See charged” offense of the offense included 33.1(a). P. of Criminal under Texas Code Procedure appeal, argues At trial and on Moore 750; see Areva Article 37.09. Feldman at public not as a acting that Hauerland was (Tex.Crim. State, lo 889 v. retaliation, servant, required as at the v. 855 Rousseau S.W.2d App.1997); incident, Hauerland’s time of the since (Tex.Crim.App.1993); 672 Tex.Code contrary of withholding the check was (Vernon 1981). PROC. Ann. art. 37.09 CRIM. Family The trial those Code sections. Next, must the court determine whether give court those defen- required that “the record contains some evidence sive instructions. permit a rational to find would is not re defensive instruction “[A] only of lesser guilty the defendant is question is not a quired when issue offense,” is, of guilty of the lesser merely statutorily-enumerated defense of of guilty charged and not fense the State’s negate serves to elements of 750; at accord Rousseau fense. Feldman case.” v. Ortiz S.W.3d Only if affirmative at 672. some denied, cert. (Tex.Crim.App.2002), U.S. lesser included offense so establishes the 1901, 155 L.Ed.2d 123 S.Ct. alternative” to the a “valid rational (2003); Giesberg accord an offense is instruction on charged (Tex.Crim.App.1998). 248-51 required. Feld included offense lesser duty requested instructions on
Moore’s 750; Wesbrook man and on the report suspected child abuse 103, 113-14 (Tex.Crim.App.2000). confidentiality investigations suspect of of implicate statutory ed child abuse do not argues, under of Code Criminal Those defenses or affirmative defenses. 37.09(2), Article assault Procedure serve, only they are instructions would is a lesser included offense retali- threat effect, any negate “public serv 37.09(2) provides by threat. Article ation ant” of retaliation. element the offense that: in refusing did not the trial court err included An offense is a lesser offense I the instructions. would overrule if: fifth issue. Instruction Lesser-Included-Offense (2) it from the offense differs charge
Before the submission less charged only respect that a jury, requested writing injury injury serious risk assault threat as simple instruction in- public person, property, same lesser included offense retaliation. See *23 terest injuries suffices to establish its commis- More serious and less serious are .... usually sion de- distinguished, purposes of offenses, termining lesser included as be- Tex.Code CRiM. PROC. Ann. art. 37.09. serious, bodily injury tween the less argues threat, by Moore that assault with- serious, bodily injury. the more serious the allegation out of a servant public vic- (Tex. See Hall v. tim, is a injury less serious the same App.-Dallas granted in pet. part); by victim than against retaliation threat 1.07(a)(8), § Tex. Penal Ann. Code public servant. (Vernon 2003). Thus, the trial court did The elements of retaliation are that: not err in Moore’s denying requested less- A person an commits offense er I included instruction. would overrule intentionally knowingly or harms or eighth Moore’s issue. by threatens to harm another an unlaw- ful act: Election (1) in retaliation for or on account of issue, In his seventh Moore contends the service or status of another as a: that the trial court erred overruling (A) servant, public witness, pro- request that the State elect between the witness,
spective informant; or or two counts of the indictment. Moore ar- (B) gues that the court should have person required who has reported or proceed who the State to elect to the actor under the knows intends to report specific more pañ offenses in occurrence of a crime.... two mate- ña. The trial court did not err in overrul- 36.06(a). § The Tex. Penal Code Ann. ing request. alleges indictment that Moore intentionally knowingly or Moore was indicted for one count of threatened harm Hauer- by an assault on public land unlawful act in servant threat and retaliation for or on account of for one against count of retaliation a public services or status of trial, Hauerland as a servant Prior public threat. servant. The indict- pleaded require ment also filed a motion to the State to elect Hauerland’s ser- proceed only count, vices or status one as a on on the public servant was as grounds superintendent, Venus ISD counts “allege both the two and that unlawful act was different to harm manners means of commit- Hauerland. ting statutory the same offense” of assault. The elements of assault threat are Moore did on argue not which count the that: State proceed. must The trial court over- A person commits offense if the ruled the motion. person: appeal, argues
On assault a public against servant and retaliation (2) intentionally or knowingly public pañ servant are in mateña. Stat threatens another with imminent bodi- utes are in pañ they mateña when “deal ly injury, including person’s general subject, the same have the spouse.... general same or purpose, relate to the 22.01(a)(2). Penal § Tex. Code Ann. person thing same or or class of or persons presence things.” or absence of a Huynh victim’s 901 S.W.2d service status as a public Cheney servant does 483 (Tex.Crim.App.1995) (quoting (Tex.Crim. render injury victim more or v. less serious for purposes App.1988)); Article 37.09. Alejos discovery the court’s (op. on State had violated (Tex.Crim.App.1977) 449-50 orders, including ex- a motion disclose object reh’g). “Similarity purpose *24 his Moore culpatory evidence. forfeited assessing in important the most factor complaints. in provisions pari are mate whether two 545, 547 ria.” Burke v. trial, Moore eight Some months before may con (Tex.Crim.App.2000). Statutes discov- discovery filed motions. Moore’s flict one with a ery “[w]here statute deals sub motion under Texas Code of Criminal terms, court to Article moved the ject general in another Procedure 39.14 and deals to produce certain “eviden- order the State subject in a part the same more of tiary possession, in the material which is way.” Id. at When such detailed 546-47. any of custody, or control of the State or pari in mate- general specific and statutes including: agencies,” its irreconcilably, specific conflict the stat ria any prospec- of criminal record [t]he ute controls. Tex. Ann. Code Gov’t witness, indictments, con- including tive (Vernon 1998); § at 311.026 see Burke victions, acquittals charges now general and specific 546-47. when against any witness pending State pari in materia irreconcil penal statutes might conceivably be information which conflict, only ably may prosecute the State the defense useful determine the Burke at n. under statute. 547 specific prejudice there exists bias or whether 3. .part on of the State’s witnesses. the trial Moore fails to show that the court 39.14 See Cium. Proc. Ann. art. Tex.Code overruling motion for election. erred (Vernon Brady His motion Supp.2004). appeal, argues only that the On Moore to order the State the court moved the and means pleaded indictment manner “[djisclose any exculpato- to the Defendant pleaded it specifically of assault more than pos- ry mitigating facts within the and/or the manner and means of retaliation. The session, custody, control the District however, does not specificity pleading, Brady any agents.” of his See Attorney or in pari statutes are determine whether 1194,10 v. 373 83 S.Ct. Maryland, U.S. materia, or, they pari materia are in (1963). before Several weeks L.Ed.2d specific. is Moore which the more does motion, trial, granted Brady the the court argue specific not assault the more that the 39.14 motion granted Article legislative as matter of intent. statute including paragraph part, granting that Moore’s Accordingly, extent quoted above. argument appeal comports with his ar on trial, again day On second Moore trial, gument argument inade orders. of the court’s sought enforcement 38.1(h); Tex.R.App. P. See quately briefed. attorney responded for the State n. 2
McCarthy
any
possession
in its
did not have
State
denied, 536
cert.
U.S.
(Tex.Crim.App.),
discovery orders
covered
material
972, 122
DiscoveRy Violations examination, Moore elicited fied direct issue, presence In his contends that Earley ninth from outside indicted, but overruling Earley had been the trial court erred arrested, On the basis mistrial, burglary. for alleged which that the motion withdrawn, State’s indict- March are Earley’s non-disclosure ment dated ment, The at- Moore moved mistrial. opinions judgment of even torneys for the State stated on the record are substituted therefor. date herewith they unaware of were the indictment. When trial court asked Moore how the material, responded
indictment
only that called the State’s non-disclosure question
into good State’s faith. *25 move did not for a continuance.
The trial court motion. overruled the
Moore later introduced the indictment against Earley purposes appel- for MATA, Appellant, Raul
late record. v. preserve order to review appellate a Brady complaint concerning evidence Texas, Appellee. The STATE of trial, light during comes to the defen- dant must move for a to pre- continuance No. 04-94-00099-CR. pare respond to the evidence. Wilson Texas, Appeals Court State, 136, (Tex.Crim.App.
1999); San Antonio. 357, Yates v. S.W.2d 1997, (Tex.App.-Waco d); pet. Apolinar ref July 2004. 421 (TexApp.- Houston pet. granted [1st Dist.]
other grounds); but see Keeter v. 144 (Tex.App.-Waco
pet. (dicta) granted) (plurality op.) (“Brady
claims ... need ‘preserved’ should not be review.”). appellate Likewise, in order preserve complaint concerning discov-
ery, party must move for a continuance. (Tex.
Smith v.
Crim.App.1989).
Moore failed to move for a continuance prepare respond against Earley, indictment evi- which
dence, case, any already in Moore’s
possession. Moore forfeited his
complaint. I would ninth overrule Moore’s
issue.
CONCLUSION
I judgment. would affirm the
PER CURIAM.
ORDER
Appellant’s rehearing motion for
granted in part. opinion judg-