Opinion filed June 23, 2011




                                             In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-09-00188-CR
                                         __________

                    VICTOR ANDREW FIORENTINI, Appellant

                                                V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 42nd District Court

                                      Taylor County, Texas

                                  Trial Court Cause No. 23189-A


                              MEMORANDUM OPINION
       The jury convicted Victor Andrew Fiorentini of the offense of assault on a public servant.
The trial court assessed appellant’s punishment at confinement for two years and a $1,500 fine,
suspended the imposition of the sentence, and placed appellant on community supervision for a
period of three years. We affirm.
                                         Issues on Appeal
       Appellant does not challenge the sufficiency of the evidence to support his conviction.
Appellant presents two issues for review. In his first issue, appellant contends that his conviction
is invalid and violated his right to due process of law because the State withheld evidence from
him in violation of Brady v. Maryland, 373 U.S. 83 (1963). In his second issue, he contends that
his conviction is invalid because the State altered or tampered with the audio portion of the video
recording that was used as evidence against him at trial.
                                          The Indictment
       The two-count indictment alleged that appellant assaulted Abilene Police Officer Aron
Bryan. Count I alleged that appellant grabbed Officer Bryan’s foot with his hand and twisted her
foot. Count II alleged that appellant struck Officer Bryan on her face with his hand.
                                      The Evidence at Trial
       We have reviewed the record in its entirety. The record shows that, in 2007, appellant
and his wife, Denise, lived in a house at 633 Sayles Boulevard in Abilene, Texas. Their son,
Anthony Fiorentini, lived with them. On November 9, 2007, appellant and Denise got into an
argument. During the argument, appellant pulled out a gun and held it to his head. Denise called
the police. Appellant was arrested for disorderly conduct and spent the night in jail. Denise and
Anthony left the house and stayed with a friend.
       On November 11, 2007, Denise and Anthony wanted to get some personal items from the
house at 633 Sayles. Because she feared appellant, Denise called the police and requested that
the police perform standby while she and Anthony retrieved personal items from their house.
Officer Bryan and Abilene Police Officers Cortney Bailey and Joe Long arrived at the scene to
perform the standby. Denise and Anthony could not get into the house through the front door
because appellant had barred it. They also could not get into the house through the garage
because appellant had locked the garage door. Denise and Anthony, followed by the officers,
entered the backyard through a gate. Appellant was sitting in a chair at a table on the back
porch. He was drinking whiskey and smoking a cigar. He was intoxicated. By his own
admission, he had consumed about fifteen ounces of whiskey in the last four hours.
       Denise and Anthony entered the house through the back sliding glass doors. The officers
stayed in the backyard. Officer Bailey explained to appellant why the officers were there. She
told him that the officers would leave as soon as Denise and Anthony gathered their belongings
from the house. Appellant became verbally abusive and aggressive toward the officers. The
officers told appellant to remain seated and again explained to appellant that the officers would
leave as soon as Denise and Anthony gathered their belongings. Appellant continued with his



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verbal abuse. He threw his cigar at Officer Bryan and got out of his chair. Appellant did not
comply with Officer Bryan’s command to sit back down.
       Officer Bryan was standing in between appellant and the sliding glass doors. Appellant
approached Officer Bryan. Officer Bryan told appellant to sit back down, but he would not.
Appellant attempted to shove her out of the way. Officer Bryan testified that appellant then
punched her in the left side of her head with his right fist. As a result of the punch, Officer
Bryan stumbled backwards. Officer Bailey pepper sprayed appellant, and the officers attempted
to arrest him. The pepper spray did not affect appellant. Appellant grabbed Officer Bryan
around her waist with both of his arms and brought her to the ground. Appellant landed on top
of Officer Bryan. Officer Bryan’s right leg was pinned under appellant. Officer Bryan testified
that appellant grabbed her right foot in a bear hug and then began twisting it. The officers
repeatedly told appellant to let go of Officer Bryan’s leg, but he would not. Instead, appellant
continued to twist Officer Bryan’s foot.
       Officer Bryan thought that appellant was breaking her foot. She was screaming and in
extreme pain. Officer Long and Officer Bailey began to hit appellant in an attempt to make him
let go of Officer Bryan’s foot. Officer Long hit appellant in the torso area, and Officer Bailey hit
him in the face. Officer Long testified that, with each hit, he told appellant to let go of
Officer Bryan. However, appellant did not comply with the commands. Officer Bailey stopped
hitting appellant and then tried to help Officer Bryan free her leg. Officer Long began punching
appellant in the face. After Officer Long hit appellant several times, Officer Bryan was able to
free her leg from appellant. Officer Long testified that, once Officer Bryan freed her foot, he
stopped hitting appellant. The officers arrested appellant and placed him in handcuffs. Officer
Bryan and appellant were both taken to the hospital for treatment.
       Through the testimony of the officers, the State presented detailed evidence supporting
the allegations in the indictment. The State also introduced into evidence audio recordings that
were made during the incident. The audio evidence was consistent with the officers’ testimony.
Appellant claimed at trial that he did not assault Officer Bryan but that, instead, the officers
made up the story that he had assaulted her in an attempt to justify the amount of force that they
used on him during the altercation. Appellant also claimed that the officers beat him up to
retaliate against him because he had taken four officers to the ground during the earlier incident
in which he was arrested for disorderly conduct. Appellant testified in support of his claims.

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Anthony testified that he saw the altercation between appellant and the police from inside the
house. Anthony also testified that appellant did not assault Officer Bryan.
          Although appellant does not attack the sufficiency of the evidence, a substantial part of
his brief is devoted to attacking the credibility of the officers’ testimony. As the trier of fact, the
jury was the sole judge of the credibility of the witnesses and of the weight to be given to their
testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). In
that role, the jury was free to believe or disbelieve all or any part of any witness’s testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Thus, the jury was free to believe
the officers’ testimony and to disbelieve appellant’s and his son’s testimony.                                           Id.     As
demonstrated by its verdict, the jury believed the officers and rejected appellant’s claims.
                                                          Brady Issue
          Before an accused may succeed in showing a Brady violation, he must show that (1) the
evidence is favorable to him because it is exculpatory or impeaching, (2) the State suppressed the
evidence either inadvertently or willfully, and (3) the suppression of the evidence resulted in
prejudice (i.e. that it was material). Ex parte Reed, 271 S.W.3d 698, 726-27 (Tex. Crim. App.
2008). Evidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. Id. at 727. A
reasonable probability is one that is sufficient to undermine confidence in the outcome of the
case. Id.
          The record shows that, during trial, the State provided appellant’s counsel with a
narrative report that had been prepared by Officer Bailey.                               However, that report was not
introduced into evidence and did not become a part of the trial record. On appeal, appellant
claims that the State failed to disclose Officer Bailey’s actual report and that the report produced
at trial was an altered version of the actual narrative.
          Appellant has attached copies of two narrative reports as appendixes to his appellate
brief. He contends that the report attached as appendix 1 is the false document that was
produced during trial and that the report attached as appendix 2 is the actual report on file at the
Abilene Police Department.1 Appellant did not raise a Brady claim in the trial court. He did not
file a motion for new trial. He did not present any evidence to the trial court in support of a

           1
             In the body of his brief, appellant refers to the reports as appendixes A and B to his brief. However, they are attached
to the brief as appendixes 1 and 2, and we will refer to them as appendixes 1 and 2.


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Brady claim. Thus, the reports attached as appendixes to appellant’s brief are not part of the trial
record. Because the reports are outside the record, we cannot consider them for the purpose of
this appeal.2 Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). While appellant
asserts in his appellate brief that the State produced the narrative attached as appendix 1 to his
brief and that the narrative attached as appendix 2 to his brief is the actual narrative, assertions in
appellate briefs are not evidence. Davila v. State, 651 S.W.2d 797, 799 (Tex. Crim. App. 1983);
Rodriguez v. State, 955 S.W.2d 171, 176 (Tex. App.—Amarillo 1997, no pet.). The record
contains no evidence as to (1) which narrative report or reports the State produced at trial and
(2) whether the State withheld production of a report. In the absence of such evidence, appellant
cannot show that the State withheld any evidence that was favorable to him.                                       Therefore,
appellant cannot prevail on his Brady claim.
         Appellant cannot succeed on his Brady claim for an additional reason. We will assume
for the purpose of our analysis that we can consider the appendixes to appellant’s brief. The
narrative attached as appendix 1 and the narrative attached as appendix 2 are almost identical.
Both narratives are one page long. The narratives describe in detail the altercation between
appellant and the officers. The narratives state, among other things, that appellant punched
Officer Bryan in the left side of her head with his right fist and that Officer Bryan’s leg was
pinned under appellant when he was on the ground. The only differences in the narratives are
shown in italics below:
         [Appendix 1]: [Appellant] was repeatedly told to let go of Officer Bryan’s leg
         and would not comply. [Appellant] began grabbing at the gear on my belt with
         his free hand which would be his right hand. He also grabbed my right hand and
         pulled it back under him to try to pin it.

         [Appendix 2]: [Appellant] was repeatedly told to let go of Officer Bryan’s leg
         and would not comply. [Appellant] began grabbing at the gear on my belt with
         his free hand which would be his right hand. I took hold of two fingers on his
         right hand to maneuver his hand away from me. He then grabbed my right hand
         with his left hand and pulled it back under him to try to pin it.

         Appellant claims that the statement that he grabbed Officer Bailey’s right hand with his
left hand contradicts the officers’ testimony that he continued to twist Officer Bryan’s foot with


         2
           The State has filed a motion to strike the narratives from the appellate record.   In an order issued today, June 23,
2011, we have granted the State’s motion because the narratives are not part of the record.


                                                               5
his left hand. Therefore, appellant claims that he could have impeached the officers’ testimony
with the statement. The fact that appellant may have let go of Officer Bryan’s foot with his left
hand at some point during the struggle would not mean that he did not twist it at other times.
Nor would it mean that Officer Bryan would have been able to free her leg from underneath
appellant’s body. The officers testified that Officer Bryan’s leg was pinned under appellant
while he was on the ground. Officer Bryan said that appellant had her right foot in a bear hug.
She also said that appellant started twisting her foot and that it felt like he was breaking it.
Considering all the evidence at trial, we conclude that the possibility appellant was not twisting
Officer Bryan’s foot with his left hand for the entire duration of the altercation was not material
evidence. Appellant’s first issue is overruled.
                                         Audio Recording
       In his second issue, appellant contends that the State altered or tampered with the audio
portion of the recording that was admitted into evidence as State’s Exhibit No. 29. This exhibit
is a DVD copy of three videos that were recorded by equipment in patrol cars. The DVD
contains audio and video. Appellant asserts that the State altered the audio portion of his
altercation with the officers. The video does not show the altercation; the patrol car was parked
on the street in front of appellant’s house. The altercation occurred in appellant’s backyard.
Appellant contends that proof of tampering is evidenced by the fact that, during the audio
recording, Officer Bryan made a radio call requesting that more units be sent to the scene while
simultaneously screaming, “Let go of me!” Appellant asserts that the scream was not on the
original audio and was added after the fact.
       At trial, appellant contended that the audio recording did not depict what actually
happened between the officers and him.            Appellant claimed that the officers made false
statements during the altercation so that the audio recording would support their version of
events. However, appellant did not object to the admission of the audio at trial. To preserve
error for appellate review, the complaining party must make a timely, specific objection in the
trial court and obtain a ruling on the objection. TEX. R. APP. P. 33.1(a); Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.
App. 1995). Appellant did not preserve any error in the admission of the audio for review. Once
the audio recording was admitted into evidence, it was within the province of the jury to evaluate
the credibility of the officers’ statements in the recording. Williams v. State, 235 S.W.3d 742,

                                                   6
750 (Tex. Crim. App. 2007). An appellate court may not reevaluate the weight and credibility of
the record evidence and thereby substitute its judgment for that of the jury. Id. Because appellant
failed to preserve error, he cannot succeed on his second appellate issue.
         However, even had appellant preserved error, the result would not be different on appeal.
Appellant did not present evidence, such as expert testimony, in support of his claim that the
State altered or tampered with the audio recording. During Officer Bailey’s testimony, parts of
the audio were played. When asked about the audio, Officer Bailey identified herself as the
person saying “let go of me” at one point during the altercation. The record does not support
appellant’s claim that the State added anything to the audio recording after the fact. Appellant’s
conviction is not invalid. His second issue is overruled.
                                                      This Court’s Ruling
         The judgment of the trial court is affirmed.


                                                                                  PER CURIAM


June 23, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel3 consists of: Wright, C.J.,
McCall, J., and Hill, J.4




         3
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         4
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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