                                   NO. 07-01-0327-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      JUNE 20, 2002

                          ______________________________


                         FAUSTINO M. DIAZ, JR., APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2000-434858; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       In a single issue, appellant Faustino M. Diaz, Jr. argues his conviction for the felony

grade offense of driving while intoxicated must be reversed. The punishment, enhanced

because of two prior convictions of driving while intoxicated, was assessed by the trial

court at 35 years incarceration in the Institutional Division of the Department of Criminal

Justice. Disagreeing that reversal is required, we affirm the judgment of the trial court.
       Appellant’s complaint arises out of the prosecutor’s alleged failure to disclose

evidence in response to an agreed discovery order. A brief discussion of the facts

underlying appellant’s prosecution is helpful in discussing the question before us. On the

evening of September 5, 2000, a motorist on Loop 289 in Lubbock notified police of a

motor vehicle being driven erratically. Lubbock Police Officer Michael Shipman responded

to the call, followed the car, and eventually pulled it over. Officer Brett Heilman also

responded to the call to assist Shipman. Predictably, appellant was the driver of the

suspect vehicle. A video camera in Shipman’s car recorded the stop, as well as the field

sobriety test administered by the officers.       The officers determined appellant was

intoxicated and arrested him. At the police intake center, a video camera recorded

appellant’s refusal to submit to a breath test. Both videotapes were received into evidence

without objection.


       Appellant sought, and by agreement was granted, a pretrial order seeking discovery

of 19 classes1 of items, including all exculpatory statements or other evidence favorable

to appellant and material to the issues of guilt or punishment. After the first trial day, a

police officer involved in the case informed the prosecutor the officers had found beer cans

in appellant’s vehicle when it was inventoried. The prosecutor informed defense counsel

of this occurrence that evening. When the proceedings resumed the next day, the

prosecutor told the trial judge about the additional evidence, stating that the police officers



       1
       This generic motion included some items not relevant to the facts of this case, such
as evidence of the “character of the alleged victim.”

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found “five empty beer cans in the car.” Although this information appeared on the written

inventory, that inventory had not been provided to the prosecutors and it was not included

in the officers’ reports.


       Because the evidence had not been supplied earlier to defense counsel, he

objected to its admission as violative of the discovery motion which, he argued, “instructed

[the State] to permit me to see any physical evidence that was gathered at the scene or

advise me of any physical evidence that was going to be offered into evidence.” However,

he did not request a continuance to give him the opportunity to investigate the new

evidence. The trial court allowed defense counsel to make his objection to the evidence

outside the presence of the jury and ruled the officers could testify as to what they saw, but

prohibited the introduction of physical evidence. After the defense cross-examination, on

its redirect examination, the State queried one of the officers about the items found during

the post-arrest vehicle inventory. He replied:


       There were some – I believe there were beer cans or bottles in the vehicle
       and I believe there was a cooler in the trunk of the vehicle when we opened
       it up. And I can’t say for sure if there was any alcoholic beverages in the
       cooler or not. But I believe inside the vehicle we found some bottles of beer
       and some cans of beer.


       When asked if the bottles or cans were empty or full, the officer testified that he

could not recall. He also stated that the containers were not collected as evidence

because they were not contraband and “because I didn’t know if he was drinking them or




                                              3
not in the car,” but that they were “clues” supporting the officer’s conclusion that appellant

had been drinking.2


       Appellant now argues 1) the trial court erred in admitting the testimony because it

was not disclosed in response to the discovery order, and 2) the officer’s testimony was

so different from the State’s representation as to what it would be as to deprive appellant

of his right of cross-examination and effective assistance of counsel.


       In support of his first proposition, appellant cites the seminal case of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which established a

prosecutor’s duty to disclose exculpatory material to defense counsel. He also relies on

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), for the

proposition that prosecutors have an affirmative duty to discover any evidence favorable

to the defense in the possession of other government actors, including police.


       The first question we must decide is whether the testimony in question was material

and exculpatory within the Brady purview, or was it otherwise within the discovery order.

Evidence is material if there is a reasonable probability that if the evidence had been

disclosed, the outcome of the proceeding would have been different. U.S. v. Bagley, 473

U.S. 667, 681-82, 105 S.Ct. 3375, 87 L.Ed.2d 481(1985). In this appeal, appellant argues

the additional evidence falls within the Brady scope because it “could have been favorable


       2
        Despite the officer’s testimony that the can did not evidence appellant had drunk
beer in the car, in his closing argument, the prosecutor used that testimony to support the
statement “we know he had been drinking that night.”

                                              4
to appellant” that the officer could not recall whether the beer containers were full or

empty. Although he admits the testimony that the containers were empty would not be

favorable to him, he posits that the officer’s inability to remember would have enabled him

to argue “they must have been full, otherwise [the officer] would have remembered empty

beer containers . . . and would have reflected such a fact in his report.” Thus, he reasons,

the information should have been revealed to him earlier. However, acceptance of this

argument would require us to speculate as to how the jury would view facially ambiguous

evidence. Because of its ambiguity, the evidence falls short of the Bagley explication.

Moreover, the evidence was not actually withheld from the defendant as was contemplated

in Brady. Rather, the evidence was actually presented in open court to the jury and

appellant was not deprived of the opportunity to argue its effect to the jury if he desired to

do so.


         We must next consider whether the challenged material fell within the requisites of

the discovery motion. In his initial objection to its receipt into evidence, appellant argues

his motion covered any physical evidence that would be introduced at trial. However, the

motion did not actually contain that provision. Supporting his objection, appellant cites

provisions 7 and 19 of the motion, which address “all statements . . . which tend to

exculpate defendant or mitigate punishment,” as well as evidence which is “favorable to

[the] defendant and material to guilt or to punishment.” As we have discussed above, the

evidence of beer containers in the car was not exculpatory and thus was not within the

discovery motion.


                                              5
       Appellant’s second argument is that the actual trial testimony by Officer Shipman

was so different from what the prosecutor described to him that it surprised him and, by

doing so, effectively denied him his due process right of cross-examination, thereby

depriving him of reasonably effective assistance of trial counsel. However, his failure to

request a continuance waived any error. See Williams v. State, 995 S.W.2d 754, 762

(Tex. App.--San Antonio 1999, no pet.). By failing to request a continuance to investigate

the “new” evidence, appellant denied the trial court an opportunity to correct any error and

proceed with the trial. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001); Tex.

R. App. P. 33.1. Any error was waived.


       In summary, appellant’s issue is overruled and the judgment of the trial court is

affirmed.



                                                 John T. Boyd
                                                  Chief Justice

Do not publish.




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