State v. Maurice Scott Ferguson ( 2011 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00110-CR
______________________________
THE STATE OF TEXAS, Appellant
V.
MAURICE SCOTT FERGUSON, Appellee
On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 09-0204X
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
OPINION
During the jury trial resulting in the conviction of Maurice Scott Ferguson for aggravated
sexual assault, the alleged victim testified that Ferguson regularly engaged in vaginal sexual
intercourse with her after school for at least three years, while she was between roughly eight and
eleven years of age. In contrast, Ferguson has consistently maintained that he had never had sex
with her. The trial court granted Ferguson a new trial, in response to Ferguson’s motion, which
claimed that the State improperly and harmfully failed to turn over a forensic sexual assault
examination report which stated (1) that the labia majora, labia minora, and hymen of the
complainant child was within normal limits, (2) that the perineum of the complainant child was
within normal limits and ―intact,‖ and (3) in summary, that the genital examination of the then
thirteen-year-old complainant child was within normal limits—a report at least arguably tending to
undermine the complainant’s testimony that she had been subjected to vaginal 1 intercourse
regularly for more than three years and at least arguably tending to support Ferguson’s claim of no
such intercourse. The State appeals the trial court’s new-trial order. We affirm the trial court’s
order, because granting a new trial was within the discretion of the trial court.
The granting or denying of a motion for new trial lies within the discretion of the trial court.
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). An appellate court reviews a trial
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This opinion focuses on the alleged vaginal intercourse, because the complainant’s testimony appears to principally
allege vaginal intercourse and because that act seems central to this appeal in light of the various elements set out by
the sexual assault examination report in issue. It is acknowledged that the record contains some testimony also
suggesting anal intercourse, but that is not central to this appeal.
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court’s ruling on a motion for mistrial and motion for new trial using an abuse of discretion
standard of review. We view the evidence in the light most favorable to the trial court’s ruling
and uphold it if it was within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d
109, 112 (Tex. Crim. App. 2007). A trial court does not abuse its discretion in granting a motion
for new trial if the defendant (1) articulated a valid legal claim in his or her motion, (2) produced
evidence or pointed to evidence in the trial record that substantiated the legal claim, and (3)
showed prejudice to his or her substantial rights under the Texas Rules of Appellate Procedure.
State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007); see TEX. R. APP. P. 44.2.
Applying this analysis, a defendant need not establish reversible error as a matter of law
before the trial court may exercise its discretion to grant a motion for new trial. On the other
hand, trial courts do not have the discretion to grant a new trial unless the defendant demonstrates
that the first trial was seriously flawed and that the flaws adversely affected the defendant’s
substantial rights to a fair trial. Id.
The dispute here revolves around a Sexual Assault Examination Forensic Report Form
completed by Donna Whipkey, R.N., at Good Shepherd Medical Center in Longview. That
report was not provided to defense counsel, and evidently was also not in the hands of the State,
but instead was possessed by one of the county’s investigative bodies. The trial court found that
the State did not intentionally withhold the report and that the report was material to the defense of
the charges against Ferguson. The court further explicitly found that Ferguson did not waive the
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Brady claim and that there was no lack of diligence relating to a failure to discover the new
evidence.
There are two different analyses at play, based on the two different arguments of legal error
presented to the trial court. One is a Brady analysis; the other the statutory analysis due to ―newly
discovered evidence.‖ Those arguments overlap, but are based on different theories of law.
Each analysis, in our view, supports the trial court’s granting a new trial.
(1) Brady Analysis
Brady v. Maryland, 373 U.S. 83, 87–88 (1963), imposes an affirmative duty on the State to
disclose evidence favorable and material to a defendant’s guilt or punishment under the Due
Process Clause of the Fourteenth Amendment. Thomas v. State, 841 S.W.2d 399, 407 (Tex.
Crim. App. 1992); Smith v. State, 314 S.W.3d 576, 584 (Tex. App.—Texarkana 2010, no pet.). A
defendant is entitled to a new trial if (1) the State fails to disclose evidence, (2) the evidence is
favorable to the accused, and (3) ―the evidence is material, that is, there is a reasonable probability
that the outcome of the trial would have been different had the evidence been disclosed.‖ United
States v. Bagley, 473 U.S. 667, 682 (1985); Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.
App. 2002).
In executing their duties, prosecutors have a duty to learn of any evidence favorable to the
defense that is known to others acting on the government’s behalf in the case, including the police.
Kyles v. Whitley, 514 U.S. 419, 437 (1995); State v. Moore, 240 S.W.3d 324, 328 (Tex.
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App.—Austin 2007, pet. ref’d).
As previously stated, a defendant is entitled to a new trial if (1) the State fails to disclose
evidence, (2) the evidence is favorable to the accused, and (3) ―the evidence is material, that is,
there is a reasonable probability that the outcome of the trial would have been different had the
evidence been disclosed.‖ Bagley, 473 U.S. at 682; Hampton, 86 S.W.3d at 612. The
evidence was undisclosed. It is apparent from the testimony at the hearing on new trial that it was
favorable to the accused. The closest question is whether the evidence creates a probability
sufficient to undermine the confidence in the outcome of the proceeding—that is, was there a
reasonable probability that the outcome would have been different if the evidence had been
disclosed.
The State first argues that the issue was waived below, thus the trial court could not
properly consider it in the motion for new trial. Therefore, the State contends, for the court to
grant a new trial in the face of the defendant’s waiver of the theories that would justify its granting
makes its decision arbitrary and unreasonable. Its initial argument is based on State v. Fury, 186
S.W.3d 67, 73 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), where the court held that a failure
to request a continuance waived Brady error. In that case, however, the existence of the
undisclosed evidence was definitely known by the defendant: it was admitted at trial with no
objection, complaint or request for continuance by the defendant.
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The State suggests that this case is in the same position because counsel learned during the
course of the trial that a S.A.N.E. examination was performed, and it ultimately became clear that
the sheriff’s office had a report generated as a result of the examination. The State argues that
counsel made a decision not to seek a postponement in order to look into the matter, and points out
that counsel decided not to call the S.A.N.E. as a witness—suggesting that this decision waived
any later complaint about anything that could have been discovered through questioning that
witness.2
The evidence adduced at the hearing on the motion for new trial is revealing. The
evidence shows that defense counsel learned of the examination during the course of the trial. It
also shows that the sheriff’s office had the report produced from that examination. However, it
also shows that defense counsel was unaware that a report existed at all, until after trial concluded.
Therefore, in support of its contention that counsel waived his arguments, the State is in the
position of arguing that counsel necessarily knew or should have known that a report existed
because an examination occurred. That is not a necessary inference. It can be argued that
reports are often, perhaps even usually, produced in connection with physical examinations.
However, it cannot be said that reports are always made. Further, in light of the State’s duty both
constitutionally and pursuant to order of the trial court to produce such a report if it did exist, the
fact that the State did not produce a report allows counsel to justifiably infer that one did not exist.
2
Defendant’s trial counsel (who is now the elected district attorney of Harrison County) testified that he—quite
reasonably—declined to call the nurse because he did not know the report existed, and thus had no knowledge of the
likely answers to his questions. We cannot fault him for that decision.
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This appeal is therefore not governed by Fury, where there was no question that the evidence
existed.
There is a significant difference between the testimony at trial and the content of the report
as later explained by the S.A.N.E. in the hearing on the motion for new trial. The trial testimony
was that there was no physical injury apparent, while the report and testimony at the hearing on the
motion for new trial reflected evidence that the complainant’s genitalia were found to be ―within
normal limits.‖ The report might be argued and understood as affirmative evidence that the
complainant was not regularly subjected to vaginal intercourse over approximately three years, as
charged by the State.
The State also argues that, with use of the report on a retrial, a different outcome was not
likely, because the State had admitted from the inception of the trial that it had no direct physical
evidence and was relying solely on the testimony of the complainant. The State introduced
testimony at trial pointing out that, during the examination of the child, no genital scarring was
found, and stating that the part of the body involved—the vagina, claimed in this instance—healed
quickly unless it ―is a terrible brutal, brutal assault.‖ On cross-examination, defense counsel
commented, and the investigator agreed, that, as no sign of scarring, tearing, or DNA was
apparent, the examination simply indicated that there was no physical evidence of injury that could
be linked back to an act. The lack of scarring was also pointed out during final argument. The
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State argues generally that the undisclosed evidence was at best cumulative, and alternatively that
trial counsel waived the complaint under both theories by not requesting a continuance at
trial—thus, the decision was therefore arbitrary or unreasonable, and the trial court, therefore,
abused its discretion by granting the new trial.
In fact, at the hearing on new trial, while on the stand, defense counsel testified that, had
the report been in his hands, his defensive strategy would have changed noticeably—shifting from
the defensive argument used—that there was no physical evidence of sexual assault—to a more
offensive argument—that there was physical evidence strongly suggesting that there was no
sexual assault, or at least that the regularity reported by complainant was incredible. That is a
substantial and supportable distinction.
Undisputed evidence shows that counsel did not know the document existed until after
trial. Further, cases have not focused on a ―should have known‖ scenario, except when the
document was provided to counsel, but then ignored—or when it was otherwise made available.
See and compare, Dalbosco v. State, 960 S.W.2d 901, 903 (Tex. App.—Texarkana 1997, order).
Even then, the argument is actually based on an alleged lack of diligence by counsel, and in light of
counsel’s actions, the trial court was within its discretion in finding that counsel diligently sought
information that was solely under the control of the State.
Counsel’s argument is persuasive. The undisclosed evidence does not conclusively prove
innocence, but it does make a defensive theory legitimately available, based on physical evidence.
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That theory would have had no grounding other than supposition before the evidence became
available. Thus, because the trial court had evidence on which it could have relied, it did not
abuse its discretion in determining that a Brady violation existed that would justify the granting of
a new trial.
(2) Newly-Discovered-Evidence Analysis
The other relevant analysis involves allegedly newly discovered evidence. ―A new trial
shall be granted an accused where material evidence favorable to the accused has been discovered
since trial.‖ TEX. CODE CRIM. PROC. ANN. art. 40.001 (Vernon 2006); Keeter v. State, 74 S.W.3d
31, 36 (Tex. Crim. App. 2002); Fury, 186 S.W.3d at 73. Before a defendant is entitled to a new
trial because of newly discovered evidence, he or she must show that (1) the newly discovered
evidence was unknown to the defendant at the time of trial; (2) the failure to discover the evidence
was not due to lack of diligence; (3) the evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably
bring about a different result in another trial. Keeter, 74 S.W.3d at 36–37; Moore v. State, 882
S.W.2d 844, 849 (Tex. Crim. App. 1994); Tuffiash v. State, 948 S.W.2d 873, 879 (Tex. App.—San
Antonio 1997, pet. ref’d). It is the purview of the trial court to determine the credibility of the
witnesses and whether the new evidence is probably true. Keeter, 74 S.W.3d at 37.
The report itself was unknown to Ferguson and in the hands of the State, counsel obtained
an order requiring that evidence of this type be provided to him, the report would be admissible,
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and it is substantially different in content from the evidence at trial. The remaining
question—whether it would probably bring about a different result in another trial—is the closer
question. The standard here, a probable difference, is higher than the Brady standard, requiring
only a reasonable probability of a different outcome.
The evidence and its implications are discussed under our Brady analysis, and the same
considerations apply in this analysis. In this review, we find that the evidence supporting the trial
court’s conclusion that the requirements for reversal based on newly discovered evidence have
been met is unclear. Under an abuse of discretion standard, however, and in light of the trial
court’s ability to process and consider the credibility of the witnesses involved, we do not conclude
that the trial court acted without reference to applicable law. Therefore, reviewing the evidence
in the light most favorable to the trial court’s ruling,3 we find that ruling to be within the zone of
reasonable disagreement.
We affirm the order of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 18, 2011
Date Decided: February 4, 2011
3
Webb, 232 S.W.3d at 112.
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