Jimmy Leon Tullos v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-118-CR



JIMMY LEON TULLOS,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 912635, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated sexual assault. Tex. Penal Code Ann. § 22.021 (West 1989). The district court assessed punishment at imprisonment for twenty-five years.

Appellant does not contest the sufficiency of the evidence, which shows that he sexually assaulted his eleven-year-old niece. Appellant's only point of error is that the district court erred by overruling his motion and amended motion for new trial based on newly discovered evidence. Tex. R. App. P. 30(b)(6). In these motions, appellant alleged that, after the trial, the complainant told several persons that her trial testimony was untrue and that appellant did not commit the acts for which he was convicted. Attached to the motions were affidavits from the complainant, appellant's wife, and another woman supporting the allegations made in the motions.

At the hearing on the motions for new trial, the complainant acknowledged telling people that her trial testimony was untrue. She also acknowledged signing the affidavit to that effect. She testified, however, that she had been under pressure from members of appellant's family to change her testimony in order to secure appellant's release from prison. The complainant stated that her trial testimony was true and that the later statements to the contrary were untrue. The district court overruled the motions for new trial after finding that the complainant's trial testimony was true, that she signed the statement to the contrary as a result of pressure from appellant's family, and that her testimony at the new trial hearing was also true.

To warrant a new trial, the new evidence must be material. To be material, the evidence must be probably true and of such weight as to probably produce a different result at another trial. Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986); Van Byrd v. State, 605 S.W.2d 265, 267 (Tex. Crim. App. 1980). Evidence that is merely cumulative or impeaching will rarely be of such weight as to be likely to bring about a different result. Jones, 711 S.W.2d at 37. In this cause, the alleged new evidence was merely cumulative of impeachment testimony the jury heard and found unpersuasive at trial. At trial, the complainant admitted that she told members of appellant's family that he did not sexually assault her. As in her testimony at the new trial hearing, the complainant explained that she made these statements as a result of fear and pressure. Appellant's wife also testified at trial and recounted statements by the complainant that her accusations against appellant were false. Obviously, the jury found the complainant's trial testimony to be credible despite the impeaching testimony. The district court has not been shown to have abused its discretion in finding that the proffered new evidence was not material and overruling the motion for new trial. The point of error is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: December 15, 1993

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