                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-15-00062-CR


                                 TIMOTHY BRITE, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                         On Appeal from the County Court at Law No. 2
                                     Lubbock County, Texas
                 Trial Court No. 2014-478,819, Honorable Drue Farmer, Presiding

                                         October 19, 2015

                                 MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, Timothy Brite, was convicted of assault domestic violence1 and

sentenced 180 days in the Lubbock County Detention Center. Appellant appeals via

three issues, contending that (1) the State violated his due process rights by failing to

timely apprise appellant of exculpatory evidence in violation of Brady v. Maryland,2 (2)

the trial court violated appellant’s rights under the confrontation clauses of the United


      1
          See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014).
      2
          See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
States Constitution3 and the Texas Constitution,4 and (3) the trial court erred in allowing

the admission of hearsay testimony during the trial.          Disagreeing with appellant’s

contentions, we will affirm.


                                 Factual and Procedural Background


       On April 1, 2014, Christina Brite, appellant’s wife, and appellant got into an

argument at their home, in the West Fork Trailer Park, over appellant’s drinking. During

the argument, Christina left the home to cool down. Upon her return to the trailer home,

the argument between Christina and appellant started again. At some point in the

argument, Christina was pushed and fell causing her to strike her face against the floor

and suffering a bloody nose and scraped face. Christina also suffered bruises to her

arms when appellant grabbed at her and attempted to pull her back into the trailer and

to her neck when appellant tried to hold her down.


       Upon getting free of appellant, Christina again went outside where she saw

Mandy Rosales, the assistant manager of the trailer park. Christina asked Rosales to

call 911.      Rosales called 911 as requested.       According to Rosales, she observed

Christina with a bloody nose.


       Officer Nicolas Anzaldua, of the Lubbock Police Department, was the first officer

to arrive at the scene. When he arrived, he observed Christina pinned against a vehicle

by appellant. Appellant was yelling at Christina and berating her. Anzaldua separated

Christina and appellant. Anzaldua handcuffed appellant and then returned to Christina


       3
           See U.S. CONST. amend VI.
       4
           See TEX. CONST. art. I, § 10.

                                                 2
and asked what was going on. Christina reported the argument and how she had come

to be injured. Anzaldua noted that while speaking to Christina she was crying and

shaking. Further, Anzaldua reported that Christina’s face was very red and puffy and

that she had red marks along her arms and neck with dried blood on her nose and lips.

Appellant was arrested and taken from the scene.


       During the first day of the trial, Rosales testified about making the 911 call. She

further testified that, at some time after the incident, appellant came to the office of the

trailer park and apologized, stating he knew he was in the wrong and that he had to

make some changes.


       Officer Anzaldua then testified about what he observed when he arrived at the

trailer park. The focus of his testimony was the statement that Christina made to him

when he first visited with her. He stated she was very shook up and was crying and

that, during the interview, she advised that appellant had drug her and pushed her

causing her to fall and strike her face. Appellant objected to Anzaldua’s testimony,

stating that it was hearsay. The trial court found that the statements by Christina were

excited utterances and therefore admissible as an exception to the hearsay rule.


       On the morning of the second day of trial, the State advised the trial court that it

had failed to disclose to appellant’s trial counsel that Rosales had a criminal history.

Rosales was on probation out of Yoakum County, Texas, following a felony conviction

for injury to a child. According to the State’s information, Rosales was serving an eight-

year community supervision sentence for the offense.         Further, she had also been

convicted for driving while intoxicated while she was on community supervision, and her



                                             3
community supervision had been modified as a result of that conviction. Rosales then

testified out of the presence of the jury regarding her community supervision and

modification of the community supervision. Rosales also testified that no one from the

Lubbock County District Attorney’s office or the Yoakum County District Attorney’s office

talked to her about testifying in exchange for any type of favorable treatment regarding

her probation. She denied that being a witness for the State would have any effect on

her community supervision. Appellant’s trial counsel then requested a continuance in

the case so that he could investigate Rosales’s criminal history. The trial court granted

a two-day continuance.


       The following day, the trial court conducted a hearing on the status of trial

counsel’s investigation into Rosales’s criminal history. At that hearing, trial counsel

advised he had received a copy of the judgment in the injury-to-a-child case that placed

Rosales on an eight-year community supervision. He further advised he had a copy of

the order modifying community supervision following Rosales’s conviction for

misdemeanor driving while intoxicated and a copy of the judgment in the driving-while-

intoxicated case.


       Trial counsel advised the court that he needed, but had not received, the

“chronos” file from Rosales’s community supervision and requested an additional

continuance to receive and investigate that information.5 When asked by the trial court

why he believed the information in the chronos would be admissible, trial counsel

advised that there could be “various extraneous acts” that could “potentially show a


       5
          Chronos are the chronological notations of the supervising community supervision officer
regarding a particular probationer.

                                                4
bias” such as a need to cooperate with the State to prevent a revocation. In reply, the

State again denied having offered Rosales anything or threatened her in any manner for

her testimony. Further, the State’s attorney advised the trial court that the Lubbock

County District Attorney’s office had not talked to anyone from Yoakum County

regarding Rosales’s status on community supervision. Thereafter, the trial court denied

trial counsel’s request for a one-week continuance.


       The trial was scheduled to resume the following day.             Prior to resuming

testimony, the trial court held a hearing on appellant’s Brady motion. At that hearing,

trial counsel opined, that had he known of Rosales’s criminal history, he would have

investigated much more thoroughly the facts of the conviction and changed his trial

strategy to more heavily impeach the witness. After hearing from the State, the trial

court denied the request for an additional continuance.


       Trial counsel then called the State’s investigator to the witness stand to inquire

about when the State found out about Rosales’s criminal history. The witness testified

that he learned of her criminal history during voir dire of appellant’s trial. Trial counsel

also called Rosales to the witness stand and elicited testimony regarding her conviction.

Rosales testified that she entered a plea of guilty to the charge of injury to a child and

that as part of her plea agreement she testified against her co-defendant. Rosales

denied having discussed her criminal history or community supervision status with the

State prior to her initial testimony in appellant’s case. Further, Rosales testified she

never believed her testimony for the State would result in an early release from

community supervision or that she would receive any favorable treatment in return for

her testimony.

                                             5
       The jury was returned to the courtroom following the hearing, and the trial

commenced again. Rosales was the first witness when the trial resumed. She testified

on direct examination by the State about her criminal history. Specifically, she testified

about her conviction for injury to a child and the resulting eight-year community

supervision. Rosales testified that she had no criminal charges pending in Lubbock or

Yoakum County. Finally, she testified that she made no deals with the State in return

for her testimony.    During cross-examination, trial counsel attempted to question

Rosales regarding the underlying facts of her conviction. The State objected and the

trial court sustained the objection. During further cross-examination, Rosales testified

that the first time she told the State about appellant’s apology was in a meeting with the

State a few days before trial. She again denied having made any type of deal with the

State’s attorney in exchange for her testimony.


       Christina then testified and denied that appellant had injured her. According to

her trial testimony, she tripped going out the door of the trailer and struck her face when

she fell. Christina further stated that, when the police officer first arrived, she was

standing next to a car and appellant was seated next to her. She acknowledged that

she asked Rosales to call 911; however, she said she did so not because she was hurt

but to just calm the situation down.


       Following the conclusion of the evidence and argument of counsel the jury

convicted appellant of assault. Appellant has perfected his appeal and now contends

that (1) his due process rights were violated by the State’s failure to produce the

criminal history of the witness Rosales, (2) his confrontation rights were violated by the

trial court’s restriction of his cross-examination of Rosales, and (3) the trial court

                                             6
committed reversible error by allowing the hearsay testimony of Officer Anzaldua.

Finding no reversible error, we will affirm the judgment entered by the trial court.


                                        Brady Issue


       Appellant’s first issue contends that the failure of the State to provide the criminal

history of Rosales prior to her initial testimony violated the requirements of Brady, 373

U.S. at 87. Failure to disclose evidence favorable to an accused is a violation of due

process, regardless whether the failure to disclose is intentional or inadvertent. See id.

at 88. To obtain relief for a violation of Brady, the appellant must show (1) the State

failed to disclose evidence, (2) the evidence withheld was favorable to him, and (3) the

evidence was material. See id. at 87. Further, the evidence must be admissible in

court. See Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011).


       The evidence at issue in this matter is the criminal history of Rosales. This

evidence would be considered impeachment evidence. Such impeachment evidence is

considered favorable evidence for the appellant. United States v. Bagley, 473 U.S. 667,

676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Accordingly, we find that the State did

fail to timely furnish the criminal history of Rosales and that the evidence of her criminal

history was favorable as impeachment evidence. See id.


       The issue before the Court is whether this evidence was material. In assessing

the materiality requirement, we must determine whether there exists a reasonable

probability that, had the evidence been disclosed, the outcome at trial would have been

different. Kyles v. Whitley, 514 U.S. 419, 433–34, 115 S. Ct. 1555, 131 L. Ed. 2d 490

(1995); Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012).


                                             7
       Appellant contends that trial counsel’s entire strategy would have been different

had the criminal history of Rosales been made available earlier. Pursuant to this line of

reasoning, appellant urges that earlier disclosure would have given trial counsel an

opportunity to fully investigate bias because of Rosales’s prior experience of making a

deal with the State. The problem with this theory is that the facts belie it. First, the

record is clear about the fact that the State made no deal with Rosales in this case. The

record demonstrates that the State did not discuss Rosales’s community supervision

status with the witness and did not discuss her status with the Yoakum County

community supervision department.       The trial court reviewed the entire file of the

prosecutors and found nothing that would qualify as Brady material, specifically nothing

to indicate that the status of Rosales as a convicted felon on community supervision

had ever been discussed.      As to appellant’s position that his trial counsel’s entire

strategy would have been different, there is nothing in the record indicating what trial

counsel thought he might find except hypothetical reasons for Rosales being biased. At

this juncture, it is prudent to note that, at the motion for new trial hearing where trial

counsel again set forth this theory, the trial court examined the entire chronological file

of Rosales’s community supervision and stated that there was nothing contained therein

that would have been admissible in the trial of appellant. The chronological file was

sealed and forwarded to this Court as part of the appellate record, and we examined the

same. Nothing in that file indicated a reason for bias, and nothing in the file would have

been admissible in appellant’s trial.      That is important because, in making our

determination about materiality, the purported Brady material must be admissible. See

Pena, 353 S.W.3d at 809.



                                             8
      Finally, when we look at the entire trial, we find that trial counsel used Rosales’s

criminal history to impeach her.    Rosales was forced to admit that she had been

convicted of a felony and was still on felony probation. Trial counsel questioned her at

length about whether she felt a need to testify for the State to avoid any problems with

her community supervision. Accordingly, trial counsel was able to make effective use of

the late furnished criminal history. Our review of the record leads us to conclude there

is no reasonable probability that the outcome would have been different had the

information been disclosed in a timely manner. Kyles, 514 U.S. at 433–34; Ex parte

Miles, 359 S.W.3d at 665. Thus, appellant has not met the third prong of the Brady

analysis. See Brady, 373 U.S. at 87. We, therefore, overrule appellant’s first issue.


      Appellant places significant value in the testimony that Rosales gave regarding

her subsequent conversation with appellant where it appeared appellant was

apologizing for the incident in question. Under appellant’s theory, this added credence

to his claim that he had demonstrated proof of the third Brady prong, that the evidence

in question was material. However, absent from appellant’s analysis is the fact that

Christina also testified about the apology. She couched her testimony in terms that the

apology was for getting the police involved and that he knew the trailer park did not

want to see any more activity requiring police involvement. The jury and trial judge

heard the testimony regarding the apology from two different witnesses. Therefore, we

fail to see how this evidence sheds any light on the question of what further

investigation of the communication between Rosales and the State’s attorney would

have revealed.




                                            9
                                    Confrontation Issue


       Appellant’s second issue contends that the trial court’s restriction of trial

counsel’s cross-examination of Rosales violated appellant’s right of confrontation. It is

the right of an accused to confront witnesses against him. See U.S. CONST. amend. VI;

TEX. CONST. art. I, § 10. Further, one of the primary rights secured by the right of

confrontation is the right to cross-examine those who would offer testimony against an

accused. See Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347

(1998); Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010). However, the trial

judge does retain wide latitude to impose reasonable limitations on such cross-

examination “based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only

marginally relevant.” Irby, 327 S.W.3d at 145 (quoting Delaware v. Van Arsdall, 475

U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)).             Such right of cross-

examination concerning the witness’s potential bias or prejudice does not include

“cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” Id. (quoting Van Arsdall, 475 U.S. at 679.) In exercising the

proper control, the trial court must ultimately make a determination of whether there is

some causal connection or logical relationship between the subject matter that the

witness is to be cross-examined about and any vulnerable relationship or potential for

bias or prejudice for the witness’s testimony at trial. See id. at 147.


       In this case, the cross-examination at issue involved proposed questions to

Rosales about her driving-while-intoxicated conviction and the underlying facts



                                             10
concerning her continuation on probation. The trial court did not allow that proposed

line of questioning.


       Concerning her driving-while-intoxicated conviction, the trial court ruled that this

was a misdemeanor conviction that did not involve moral turpitude. See TEX. R. EVID.

609(a)6 (stating that a criminal conviction may be offered to attack a witness’s character

must be admitted if the crime was a felony or involved moral turpitude).                            The

impeachment value of such a conviction is minimal at best, for it sheds no light on any

reason Rosales would have a bias in testifying. See Irby at 147. The record reveals

that Rosales’s community supervision had been modified in 2007 following her

conviction for driving while intoxicated. There was nothing in the record to indicate that

the conviction had anything to do with Rosales’s testimony before the trial court. See id.

We find that the limitation of appellant’s rights to cross-examine Rosales regarding her

conviction for driving while intoxicated did not infringe upon his constitutional right of

confrontation as guaranteed by the U.S. Constitution and the Texas Constitution. See

U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.


       Appellant next complains that the trial court impermissibly limited cross-

examination of Rosales about her continued community supervision status.                           Trial

counsel wished to examine Rosales regarding the fact that her community supervision

had been modified following her conviction for driving while intoxicated. Further, he

wished to cross-examine Rosales regarding the fact that, as part of the plea agreement

on the injury-to-a-child case, she testified against her co-defendant.                     Trial counsel

additionally wanted to ask Rosales about her understanding of the relationship between

       6
           Further reference to the Texas Rules of Evidence will be by reference to “Rule ____.”

                                                     11
the State’s attorney and the community supervision officer. Finally, appellant contends

that the trial court limited his right to cross-examine Rosales about her meeting with the

five representatives of the State prior to trial. According to appellant, the trial court

impermissibly denied him the right to cross-examine Rosales as to all of these matters.7


        Initially, we observe that these areas of cross-examination suffer from the same

flaw as the previous area concerning Rosales’s driving-while-intoxicated conviction.

That is, there is no discernible causal connection or logical relationship between these

areas of inquiry and possible bias or prejudice on the part of Rosales for the State. See

id. Rather, this appears to simply be an attempt by trial counsel to cross-examine

Rosales in a manner he deems effective in whatever way, and to whatever extent, the

trial counsel might wish. See id. at 145 (quoting Van Arsdall, 475 U.S. at 679.) Our

review of the record reveals that trial counsel was asked how the questions he was

proposing to ask were admissible and relevant and all trial counsel could say was to

show bias or prejudice. Simply uttering the words bias and prejudice neither makes the

areas of cross-examination admissible or relevant. The record is devoid of any fact

from which one might ascertain how the questions trial counsel proposed to ask might

have anything to do with Rosales’s testimony. See id. at 147. Therefore, the trial court

did not err in disallowing trial counsel to cross-examine Rosales in these areas.


        We further note that from the record, the trial court actually did allow some of the

areas proposed by trial counsel to be asked. Specifically, trial counsel asked about

Rosales’s community supervision officer in Lubbock and whether Rosales understood


        7
          During trial counsel’s bill of exception, there were several other proposed questions put into the
record; however, the ones listed above are the only ones that appellant complains about on appeal.

                                                    12
that the officer had the authority to file an application to revoke her community

supervision. Rosales answered affirmatively as to that question. Counsel then was

allowed to elicit the response from Rosales that she would have to go to prison if her

community supervision was revoked and that she did not want to do that. This was all

cross-examination that could show a bias or prejudice and appellant was allowed to

question the witness about it. So, too, did the trial court allow trial counsel to cross-

examine Rosales about her meeting with the five representatives of the State a week or

so before trial. He was further allowed to examine Rosales about the fact that it was at

that meeting that she first informed the State about appellant’s apology. Thus, the

record reflects that there was no total denial of the right of cross-examination, rather a

selective denial based upon the fact that the areas to be inquired into would shed no

light on the issue of bias or prejudice.8 See id. at 147.


        We hold that the trial court properly limited trial counsel’s cross-examination of

Rosales. Therefore, there was no denial of appellant’s right of confrontation. See U.S.

CONST. amend. VI; TEX. CONST. art. I, § 10. Appellant’s second issue is overruled.


                              Admission of Anzaldua’s Testimony


        In his final issue, appellant contends the trial court erred in allowing Anzaldua to

testify about what Christina told him when he first arrived on the scene of the assault.

Appellant contends that such testimony was hearsay and not admissible. We review a

trial court’s decision to admit evidence over an objection under an abuse of discretion

standard of review. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).


        8
        It is noteworthy that during Christina’s testimony, she testified about meeting with Rosales and
the manager and appellant’s issuance of an apology.

                                                  13
The trial court abuses its discretion when its decision lies outside the zone of

reasonable disagreement. Id.


      The evidence at issue was the testimony of the first police officer on the scene,

Anzaldua. He testified that Christina told him that, when she tried to leave the trailer,

appellant grabbed her by the arms. As appellant was pushing her into the ground, her

head hit the front door and that is when she thought her nose started bleeding. When

such testimony was offered, appellant objected that the hearsay statements of Christina

were not admissible. The trial court overruled the hearsay objection. It is these rulings

about which appellant complains.


      Hearsay is an out-of-court statement testified to by someone other than the

declarant and introduced to prove the truth of the matter asserted in the statement. See

Rule 801(d).    Hearsay is not admissible in trial unless it falls within one of the

recognized exceptions to the hearsay rule. See Rule 802. One of the exceptions to the

hearsay rule is an excited utterance. See Rule 803(2). Rule 803(2) provides that an

excited utterance is “[a] statement relating to a startling event or condition, made while

the declarant was under the stress of the excitement that it caused.” Id.


      The record reflects that Anzaldua testified that when he arrived on the scene, he

observed appellant and that appellant had Christina pinned against a vehicle. That

appellant was yelling at and berating her. Anzaldua further testified that he got out of

his car and ordered appellant to step away from Christina. He observed Christina, who

appeared to be crying and shaking and noted that Christina had visible injuries.

Anzaldua then spoke with Christina, who was crying and shaking so hard that she could



                                           14
barely speak.     It was at this juncture, while speaking with Christina, that she told

Anzaldua what had occurred.


       From this record, we note that the assault was either still on-going or had just

stopped when Anzaldua arrived. Christina was still crying and shaking as she relayed

the events to Anzaldua. Thus, she was still dominated by the startling event when she

made the statements to Anzaldua. See Zuliani v. State, 97 S.W.3d 589, 596 (Tex.

Crim. App. 2003). This is the hallmark of an excited utterance. See id. Accordingly,

Anzaldua’s testimony about what Christina told him was admissible as an excited

utterance exception to the hearsay rule. Rule 803(2). The trial court did not abuse its

discretion in admitting the testimony. See McCarty, 257 S.W.3d at 239. Appellant’s

third issue is overruled.


                                       Conclusion


       Having overruled appellant’s issues, we affirm the judgment of the trial court.




                                          Mackey K. Hancock
                                             Justice


Do not publish.




                                            15
