Rene Velez v. State ( 2014 )

Opinion issued September 25, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00337-CR
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RENE VELEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Case No. 1677907
MEMORANDUM OPINION
Appellant Rene Velez pleaded guilty to a misdemeanor violation of a
protective order with a plea agreement of deferred adjudication and community
supervision for two years. See TEX. PENAL CODE ANN. § 25.07 (West Supp. 2014).
The State subsequently moved to revoke the community supervision. After a
hearing, the trial court found true the State’s allegation that Velez had violated a
condition of his community supervision, revoked it, and sentenced him to
confinement in county jail for 300 days. On appeal, Velez contends that the
evidence supporting revocation is legally insufficient because the 911 recording,
which he contends was inadmissible, is the only evidence supporting revocation.
Velez also argues that reversal is required because the State violated Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by failing to notify him that the
complainant had recanted. We affirm.
Background
Velez pleaded guilty to violating a magistrate’s order for emergency
protection of the complainant, Letisha Talamantes Deleon. In exchange for his
guilty plea, the State recommended that the trial court defer adjudication of Velez’s
guilt and place him on community supervision for two years. The trial court
accepted the recommendation, deferred adjudication of Velez’s guilt, and placed
him on community supervision for two years. As a condition of his community
supervision, Velez was ordered to have no contact with Deleon. Within the two
years, the State moved to revoke Velez’s community supervision on the ground
that he had contact with Deleon. 1
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The State originally alleged four grounds for revocation, but abandoned all but this
ground at the conclusion of the revocation hearing.
2
At the revocation hearing, Officer C. Oliver of the Pasadena Police
Department testified that on August 27, 2011, he responded to a 911 call from
Deleon regarding an assault. When he arrived in the parking lot where Deleon was
waiting, he saw a car with a broken window. Deleon was crying and upset, and
Oliver observed swelling on the side of her face. Deleon told Oliver that her “ex”
had assaulted her and broken her car window. Oliver was asked whether, through
his investigation, he came to learn the identity of the assault suspect, and Oliver
testified that it was Velez. He also testified that he learned that Deleon was going
to recant several days before the hearing.
Deleon testified that on August 27, 2011, she went to dinner and a club. She
testified that she did not come into contact with Velez and that the facts alleged in
the motion for revocation did not happen.
After Deleon recanted, the trial court admonished her regarding the
consequences of perjury and offered to provide her with a court-appointed lawyer,
but Deleon declined. The trial court then questioned the prosecution regarding its
knowledge of Deleon’s recantation. One of the two prosecutors at the hearing told
the court that Deleon told him that morning “that she didn’t want this to go on
anymore, [and] would say [what] we’re talking about here today didn’t happen,”
but that he “asked her what actually happened, and she gave me the account that
was consistent with the story that she told the police.” He told the court that when
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he spoke with Deleon previously, “[e]verything ha[d] been consistent with the
story she told the police.”
A second prosecutor told the court that he had contact with Deleon three
times before the hearing, and each time she “stated to me that she did not want to
deal with this [and] could not miss work. She never recanted to me over the phone
that it didn’t happen.” By contrast, Deleon testified that she told five different
prosecutors that she “wanted to drop it, it didn’t happen.”
The trial court admitted photographs depicting an upset Deleon and her
broken car window. Deleon testified that she broke the window herself with a bat.
She admitted that she called 911 and that State’s Exhibit 11, the recording of the
call, was a fair and accurate copy of the call. Velez objected that the admission of
the recording was improper impeachment, because the recording was inadmissible
hearsay and the State put Deleon on the stand knowing that she would recant. The
trial court admitted the recording, in which an upset Deleon states that her “ex,”
who is subject to a restraining order, came up and punched her. 2 After the
recording was played, Velez asked Deleon “So you’re telling us basically what you
said on the tape was not true?” and she responded, “Yes, he didn’t do it.”
At the conclusion of the hearing, the trial court directed both sides to
produce additional caselaw regarding whether the court should consider the 911
2
Although the trial court later indicated that she might not consider the recording,
the ruling admitting the exhibit was unequivocal: “State’s Exhibit 11 is admitted.”
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recording. Both sides later declined to present further evidence or arguments. The
trial court found true the allegation that Velez violated the no contact requirement
of his community supervision, revoked his community supervision, adjudicated
him guilty, and sentenced him to 300 days in county jail. Velez appealed.
Admissibility of 911 Recording and Sufficiency of Evidence to Support
Revocation
Velez argues in his first and second issues that the trial court erred in
admitting the 911 recording, and because it is the only evidence supporting the
revocation, the trial court abused its discretion in revoking his community
supervision.
A. Standard of Review and Applicable Law
When we review a trial court’s decision to revoke a defendant’s community
supervision, “[o]ur review of the evidence is limited to determining whether the
trial court abused its discretion . . . .” Canseco v. State, 199 S.W.3d 437, 439 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref d). “To support an order of revocation,
the State must prove a violation of a condition of community supervision by a
preponderance of the evidence.” Jones v. State, 176 S.W.3d 47, 50–51 (Tex.
App.—Houston [1st Dist.] 2004, no pet.). The State meets its burden of proof “if
the greater weight of credible evidence creates a reasonable belief that the
defendant violated a condition of his community supervision as alleged by the
State.” Id. at 51. “[A] reviewing court is permitted to consider all evidence in the
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trial-court record, whether admissible or inadmissible, when making a legal-
sufficiency determination.” Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.
App. 2006).
“[T]he trial judge is the sole trier of facts, and determines the credibility of
the witnesses and the weight to be given their testimony.” Jones v. State, 787
S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). “The appellate
court then reviews the evidence in the light most favorable to the judgment of the
trial court.” Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.—Houston [1st
Dist.] 1993, no pet.); see also Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim.
App. [Panel Op.] 1981) (“[T]his Court must view the evidence in a light most
favorable to the verdict . . . .”).
B. Analysis
Velez argues that there is legally insufficient evidence because the 911
recording is the only evidence supporting revocation and, according to Velez, it
was erroneously admitted. Even if we were to assume that admission of the 911
recording was erroneous, we may still consider this evidence when determining
whether the evidence is legally sufficient. See Powell, 194 S.W.3d at 507
(reviewing court permitted to consider admissible and inadmissible evidence when
making a legal-sufficiency determination). Even if we did not consider the 911
recording in our analysis, however, we nevertheless would conclude that evidence
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other than the 911 recording supports the revocation. Officer Oliver testified that
when he responded to the 911 call, he found Deleon crying and upset, and
observed swelling on the side of her face. Deleon told him that her “ex,” whom
Oliver later learned was Velez, had assaulted her and broken her car window. This
oral testimony is sufficient to create a reasonable belief that Velez had contact with
Deleon. See Jones, 787 S.W.2d at 97.
We also must reject Velez’s contention that the admission of the 911
recording warrants reversal. The 911 recording is largely duplicative of Oliver’s
testimony. Accordingly, assuming this complaint was preserved, and that the trial
court erred in admitting the 911 recording, the error was harmless. See Brooks v.
State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (improper admission of
evidence does not constitute reversible error and is properly deemed harmless if
the same or similar facts are proved by other properly admitted evidence);
Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986) (same).
We hold that the trial court did not abuse its discretion in finding that Velez
had contact with Deleon and ordering revocation. See Canseco, 199 S.W.3d at
439.
We overrule Velez’s first and second issues.
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Alleged Brady Violation
In his third issue, Velez argues that reversal is required because the State
violated Brady by failing to notify the defense that Deleon had recanted.
A. Standard of Review and Applicable Law
“[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963). To find
reversible error under Brady, the appellant 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. Pena v. State, 353 S.W.3d 797, 809 (Tex.
Crim. App. 2011).
When evidence withheld in violation of Brady is disclosed at trial, the
appellant must demonstrate prejudice arising from the timing of the disclosure.
See Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999). When disclosure
happens during trial, the appellant’s failure to request a continuance waives the
error “or at least indicates the delay in receiving the evidence was not truly
prejudicial.” Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.—Houston [1st
8
Dist.] 2003), aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005); see
also Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007, no pet.)
(holding that defendant must request continuance and present Brady complaint in
motion for new trial to preserve error on appeal). To preserve a Brady complaint
for appellate review, the record must show that the appellant objected to the Brady
violation and obtained a ruling on the objection from the trial court. See Pena, 353
S.W.3d at 807.
B. Analysis
Velez contends that the State failed to disclose that Deleon had recanted,
which was information favorable to him, and that if he had known that Deleon
recanted, it would have changed the outcome of the hearing. The record shows
that the trial court questioned the prosecutors about what Deleon had told them
with respect to her recantation. Velez did not ask the trial court to rule on his
Brady claim, object to the trial court’s failure to rule, or request a continuance.
Accordingly, we hold that Velez waived any Brady violation. See State v. Fury,
186 S.W.3d 67, 73–74 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (where
appellant did not request continuance following complainant’s trial testimony
regarding previously undisclosed evidence, and did not obtain ruling from trial
court regarding alleged Brady violation, appellant waived any Brady complaint);
see also Pena, 353 S.W.3d at 807 (to preserve Brady complaint, record must show
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that appellant raised issue with trial court and obtained ruling or objected to trial
court’s failure to rule).
We overrule Velez’s third issue.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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