Taylor v. State

555 S.W.3d 765

Brandon Wayne TAYLOR, Appellant

v.The STATE of Texas, Appellee

No. 07-16-00419-CR

Court of Appeals of Texas, Amarillo.

July 23, 2018

Erin Lands, for Appellee.

Michael A. Warner, Amarillo, for Appellant.

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Judy C. Parker, Justice

Appellant, Brandon Wayne Taylor, appeals his convictions for the offenses of indecency with a child,¹ aggravated sexual assault of a child,² and sexual assault of a child.³ Appellant was sentenced to five years' incarceration and a $10,000 fine, forty years' incarceration and a $10,000 fine, and thirteen years' incarceration and a $10,000 fine, respectively. The trial court ordered each of the sentences to run consecutively. By his appeal, appellant raises eight issues. We affirm the judgment of the trial court.

Factual and Procedural Background

Appellant was indicted for committing three counts of indecency with a child, four counts of aggravated sexual assault of a child, and one count of sexual assault of a child. All of these alleged offenses involved appellant’s biological daughter, K.A.T. K.A.T. was thirteen or fourteen years old when each alleged incident occurred. The incidents forming the basis for these allegations occurred on or about August 1, August 9, September 13, and October 18, 2014, and January 1, 2015.

When K.A.T.’s mother took possession of K.A.T. and her brother for summer visitation in May of 2015, she said she could not recognize K.A.T.’s personality. Concerned about K.A.T.’s changed behavior, her mother looked at K.A.T.’s phone and discovered vulgar and hypersexual text conversations, apparently with appellant. When she confronted K.A.T. about these messages, K.A.T. became embarrassed and ashamed and blamed "everything" on appellant.

To prove to her mother that she was telling the truth, K.A.T. called appellant from her hotel room in California while her mother recorded the phone call. In the conversation, K.A.T. told appellant that she had lost a journal that contained her writings about instances when he would come into her room and touch her. During the conversation, appellant never refuted K.A.T.’s repeated references to him coming into her room and touching her, and appellant acknowledged that, if K.A.T.’s mother reads the journal, she will talk to the police. Immediately following this, appellant told K.A.T., "[y]ou better tell her you lied."

The case was reported to the Borger Police Department in May of 2015. Following an investigation, appellant was indicted as described above. Soon after being indicted, appellant retained an attorney from the Dallas area. In September of 2016, the trial court heard pre-trial matters. One of the matters addressed at this hearing was the State’s motion in limine. The State sought to prohibit any evidence of K.A.T.’s past sexual behavior without a prior discussion of the evidence outside of the presence of the jury. Appellant objected, claiming that he needed to address her past sexual behavior to explain to the jury that she had been pregnant. The trial court granted the State’s motion but held in abeyance any ruling on the admissibility of such evidence until it was offered at trial.

Less than two weeks after the September pre-trial hearing and one week before trial had been specially set to begin, the trial court heard appellant’s motion for continuance. Appellant requested a continuance after firing his Dallas lawyer and hiring local counsel. Appellant requested a ninety-day extension to allow his new counsel to obtain the file from appellant’s former lawyer and to conduct some additional investigation. The trial court denied appellant’s motion for continuance, citing the year and two months that the case had been pending as well as the fact that the case had been specially set for October 17, 2016. The trial court ordered appellant’s prior attorney to turn over a copy of appellant’s file within twenty-four hours.

The case was called for trial on October 17, 2016. Before trial began, the State abandoned two of the eight counts alleged. Appellant entered a plea of not guilty to all remaining counts. After hearing the evidence presented, which included the testimony of K.A.T., as well as the recording of the phone call between K.A.T. and appellant, the jury found appellant guilty of one count of indecency with a child, one count of sexual assault of a child, and one count of aggravated sexual assault of a child. After hearing punishment evidence, the jury returned a verdict sentencing appellant to five years' incarceration and $10,000 fine for the indecency conviction, thirteen years' incarceration and a $10,000 fine for the sexual assault conviction, and forty years' incarceration and a $10,000 fine for the aggravated sexual assault conviction.

Following the trial, appellant filed a motion for new trial upon which the trial court held a hearing. Appellant offered the testimony of Michael Stanford, K.A.T.’s ex-boyfriend. Appellant contended that the State had violated his due process rights by not disclosing Stanford’s testimony before trial. The State offered testimony to establish the extent to which it possessed information regarding how Stanford would have testified at trial. At the close of the hearing, the trial court denied the motion after opining that the new evidence was cumulative and collateral.

Brady Violation

By his first issue, appellant contends that the State violated his due process rights by failing to disclose evidence that is exculpatory of appellant. Specifically, appellant contends that the State suppressed evidence that Michael Stanford, K.A.T.’s ex-boyfriend, would testify that he was with K.A.T. from December 30, 2014 through January 2, 2015, and that she and appellant did not have any contact during that period of time.

Law

The State must disclose exculpatory evidence that is material to the defendant’s case. See Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). A Brady violation occurs when the State fails to disclose evidence which is favorable to the accused that creates a probability sufficient to undermine the confidence in the outcome of the proceeding. Thomas v. State , 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc). Thus, to establish a Brady violation, a defendant must show that:

1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith;

2) the withheld evidence is favorable to him; [and]

3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.

Hampton v. State , 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).

"[P]rosecutors have a duty to learn of Brady evidence known to others acting on the [S]tate’s behalf in a particular case." Harm v. State , 183 S.W.3d 403, 406 (Tex. Crim. App. 2006) (en banc) (citing Kyles v. Whitley , 514 U.S. 419, 437-38, 115 S.Ct. 1555, 131 L.Ed. 2d 490 (1995) ). However, the State is not obligated to disclose exculpatory information that it does not possess or know to exist. Id. at 407 (citing Hafdahl v. State , 805 S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990) ). Further, the State "is not required to seek out exculpatory evidence independently on appellant’s behalf, or furnish appellant with exculpatory or mitigating evidence that is fully accessible to appellant from other sources." Id.

"Favorable evidence is that which, if disclosed and used effectively, ‘may make the difference between conviction and acquittal.’ " Pena v. State , 353 S.W.3d 797, 811 (Tex. Crim. App. 2011) (quoting United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed. 2d 481 (1985) ). Favorable evidence includes exculpatory evidence as well as impeachment evidence. Id. Exculpatory evidence is evidence that may justify, excuse, or clear the defendant from guilt. Id. at 811-12. Impeachment evidence is evidence that disputes, disparages, denies, or contradicts other evidence. Id. at 812.

"Under Brady , the defendant bears the burden of showing that, in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure." Hampton , 86 S.W.3d at 612. If it is merely possible that the undisclosed information might have helped the defense or affected the outcome of the trial, it is not material in the constitutional sense. Id.

Analysis

Appellant offered the testimony of Stanford and Stanford’s grandparents at the hearing on appellant’s motion for new trial. Stanford testified that he was with K.A.T. continuously from December 31, 2014 through January 2, 2015, and that there was no point during this time that appellant and K.A.T. came into contact. Stanford and his grandparents testified about a trip that they took with K.A.T. to the Dallas-Fort Worth area during which they stayed at a La Quinta Inn.⁴ Appellant contends that this is Brady evidence that the State had a duty to disclose because this evidence directly refutes the allegations relating to offenses occurring on or about October 18, 2014, and January 1, 2015.

Prior to trial, the only person associated with the State to speak to Stanford was investigator C.H. Price. According to Price’s testimony at the new trial hearing, Stanford said that he did not believe K.A.T.’s allegation against appellant because K.A.T. loved her dad. Stanford told Price that K.A.T. can be truthful but Stanford questioned her truthfulness because she cheated on him during their relationship. However, Price specifically testified that he and Stanford did not specifically discuss December 31, 2014, or the trip that K.A.T. took to the Dallas-Fort Worth area with Stanford and his grandparents. Thus, according to Price’s testimony, the only evidence from Stanford that the State had knowledge of was that Stanford did not believe K.A.T.’s allegations against appellant because K.A.T. loved her dad and cheated on Stanford.

The State is under no duty to disclose...