                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                          No. 04-14-00222-CR

                                      Jacob Cory GONZALES,
                                             Appellant

                                                  v.
                                               The State
                                          The STATE of Texas,
                                                Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011CR8528A
                               Honorable Pat Priest, Judge Presiding

Opinion by:      Jason Pulliam, Justice

Sitting:         Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice
                 Jason Pulliam, Justice

Delivered and Filed: July 15, 2015

AFFIRMED AS MODIFIED

                                             BACKGROUND

           Jacob Gonzales and his older brother Richard Mendez were charged with murder as co-

defendants. Mendez pled guilty under a plea bargain agreement. Gonzales tried his case to a jury

and was found guilty. The trial court sentenced Gonzales to twenty years’ confinement. He

perfects this appeal. We affirm the judgment of the trial court, as modified herein.
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                                             ANALYSIS

                               1. Disclosure of Mendez Recording

       During the pre-trial process, Gonzales moved for discovery of all exculpatory or mitigatory

evidence and all items material and relevant to the case. The trial court granted his motion and

entered a discovery order requiring disclosure of all “Brady” material. Mid-way through the trial,

the prosecutor for the State informed Gonzales’s attorney she recently came to possess a recording

of a telephone call made by Richard Mendez from the county jail. However, the prosecutor stated

she did not need to, and would not, disclose the recording because it did not contain any

exculpatory information and would not be used by the State against Gonzales. Gonzales addressed

the issue of disclosure of the subject recording with the trial judge outside the presence of the jury

in the following exchange:

       DEFENSE COUNSEL: I’ve been informed there’s another tape, a Richard Mendez
       phone call. We have requested a copy of that to determine whether there’s any
       evidence whatsoever. Richard is going to be, as we plan, one of our witnesses in
       the case-in-chief. The Government has provided all other jail phone calls and
       they’re withholding this one, and we would request that it be turned over to us.

       THE COURT: State?

       THE PROSECUTOR: Your Honor, it is a more recent phone call, and I don’t
       believe he’s entitled to a copy of it unless there’s anything in it that has been
       determined to be of evidentiary use, and then we would turn it over. But as of yet,
       I don’t — I do not believe we will be using it for purposes of this trial.

       DEFENSE COUNSEL: Judge, I mean, who gets to determine this? They’ve given
       me every other tape, why not give me this one of him calling, and my client calling
       on jail phones? They’re all recorded.

       THE COURT: Is it your position that under current law they are obliged to give
       you a copy of everything like that that they have . . . even if it is not exculpatory?

       DEFENSE COUNSEL: It is my position that we are simply asking, its new
       evidence that the prosecutor made me aware of and we’re requesting a copy of it.

       THE COURT: I’m asking you, sir, is it your position that whether it’s exculpatory
       or not you’re entitled to it?
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       DEFENSE COUNSEL: Judge, we believe we are entitled to at least hear it. We
       would like to do that.

       THE COURT: And what says the State to that?

       THE PROSECUTOR: And, Your Honor, under the current law, since this offense
       happened prior to the—the Morton Act coming into effect in January of 2014, he
       is not entitled to it.

       THE COURT: Are you representing to me that there’s nothing exculpatory for
       Jacob Gonzales on the recording?

       THE PROSECUTOR: No, Your Honor—no—yes, I am representing to you that
       there’s nothing exculpatory for Jacob Gonzales on the recording.

       THE COURT: Then I will not require it to be turned over.

       DEFENSE COUNSEL: Very well.

       In his first point of issue, Gonzales argues the trial court erred by: (1) failing to compel the

State to produce the subject recording for defense inspection; (2) not conducting an in camera

review of the subject recording; and (3) not making the subject recording part of the appellate

record. Specific to all three points, Gonzales argues the contents of the subject recording are

potentially exculpatory, thus compelling disclosure. The State argues generally with regard to all

three points and contends Gonzales did not preserve error for appeal. We will address first the

State’s contention Gonzales did not preserve error.

                                       Preservation of Error

       To preserve error for appellate review, the record must show the complaining party made

a timely request or motion stating the grounds for the ruling the party seeks. TEX. R. APP. P.

33.1(a)(1); see Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013). The party must state

the grounds for the request with “sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context.”             TEX. R. APP. P.

33.1(a)(1)(A). “[A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the


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trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough

for the judge to understand him at a time when the trial court is in a proper position to do something

about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992); see also Ford v. State,

305 S.W.3d 530, 533 (Tex. Crim. App. 2009). Further, error can only be committed when the trial

judge refuses a specific request for action or takes action over objection. Michaelwicz v. State,

186 S.W.3d 601, 610 (Tex. App.—Austin 2006, pet. ref’d)

       Review of the cited exchange reveals Gonzales clearly requested disclosure of the subject

recording, and the trial judge clarified Gonzales’s request to sufficiently understand its scope. The

trial court then entered a ruling pertaining to Gonzales’s request for disclosure. Based upon this

exchange, Gonzales’s attorney made his request for compelled disclosure of the subject recording

clear enough for the judge to understand what he sought and to rule on his request. See Lankston,

827 S.W.2d at 909. Therefore, Gonzales preserved any error pertaining to the trial court’s denial

of his request for disclosure.

       At the time his request for disclosure was denied, Gonzales’s attorney did not request the

trial court conduct an in camera review. While Gonzales did raise this point vaguely and indirectly

in a motion for new trial by stating, “[t]he court failed to conduct a proper Brady hearing or charge

the jury with a Brady/spoliation charge by simply asking the prosecutor about the tapes and did

not examine them in camera,” the record does not reveal he presented the motion for new trial to

the trial judge, and it appears the motion was overruled by operation of law, without a ruling.

Because Gonzales did not clearly and specifically request an in camera inspection and did not

present his motion for new trial for a definite ruling, he failed to preserve error on this point. See

Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (holding a defendant must present

trial judge with motion for new trial to preserve error). Further, Gonzales’s attorney never

requested the subject recording be included in the appellate record. Because, Gonzales failed to
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request the trial court conduct an in camera review and failed to request the recording be included

in the appellate record, he failed preserve error on these points.

         However, we recognize a trial court’s sua sponte in camera inspection of potential Brady

material is common and intertwined in a defendant’s assertion of violation of due process. See

e.g., Thomas v. State, 837 S.W.2d 106, 114 (Tex. Crim. App. 1992); Michaelwicz, 186 S.W.3d at

614. Therefore, in the interest of justice given Gonzales’s assertion of a due-process violation, to

the extent Gonzales asserts the trial court should have conducted an in camera inspection sua

sponte, this court will examine this issue as well.

                                                   Disclosure

         Gonzales argues the trial court erred by refusing to compel disclosure of the subject

recording because it could have contained exculpatory information. Gonzales relies heavily upon

Brady v. Maryland in arguing he was entitled to disclosure and denial of his request was a denial

of due process. See Brady v. Maryland, 373 U.S. 83 (1963).

         To begin, we must clarify the law applicable to the facts in this case. The alleged offense

occurred on July 7, 2011, and trial began on February 18, 2014. The Michael Morton Act, which

significantly changed discovery procedure in criminal cases, became effective in the interim, on

January 1, 2014. See Michael Morton Act, 83rd Leg., R.S., ch. 49, § 3, 2013 Tex. Sess. Law Serv.

1611 (codified as TEX. CODE CRIM. PROC. ANN. art. 39.14 (West Supp. 2014)). 1 The Michael

Morton Act applies to litigation of offenses that occurred on or after January 1, 2014. Id.

Accordingly, the Michael Morton Act does not apply to this case. Rather, the statute and caselaw

pertinent to disclosure of evidence in a criminal case apply as they existed prior to January 1, 2014.




1
  The Michael Morton Act, creates a general, ongoing discovery duty of the State to disclose before, during, or after
trial any evidence tending to negate the guilt of the defendant or reduce the punishment the defendant could receive.

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       Criminal defendants are entitled to limited discovery under Article 39.14 of the Texas Code

of Criminal Procedure in addition to, and independent of the constitutional right of access to

exculpatory evidence provided within Brady v. Maryland. Kinnamon v. State, 791 S.W.2d 84, 91

(Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex.

Crim. App. 1994); see also Brady, 373 U.S. at 87. Under both frameworks, a defendant does not

have a general right to discovery of evidence in possession of the State. Kinnamon, 791 S.W.2d

at 91. To obtain discovery, a defendant must show good cause, the item is material to the defense,

and the item is possessed by the State. TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West 2005);

Tope v. State, 429 S.W.3d 75, 82 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Determination

of what is discoverable is committed to the discretion of the trial court. McBride v. State, 838

S.W.2d 248, 250 (Tex. Crim. App. 1992); Kinnamon, 791 S.W.2d at 91. Thus, on appeal, we must

determine whether the trial court abused its discretion. See McBride, 838 S.W.2d at 250.

       Under either the Texas statute or the constitutional protection of Brady, the legal standard

employed to determine whether the trial court abused its discretion is whether the item sought is

material to the defense of the accused. Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim. App.

2012); Whitchurch v. State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983); Quinones v. State, 592

S.W.2d 933, 940-41 (Tex. Crim. App. 1980) cert. denied, 449 U.S. 893 (1980). Under this

standard, an excluded item is material only if it would have created a reasonable doubt that did not

otherwise exist; or in other words, a reasonable probability the outcome of the trial would have

been different had the item not been excluded. United States v. Agurs, 427 U.S. 97, 112 (1976);

Miles, 359 S.W.3d at 666; Quinones, 592 S.W.2d at 941.

       A nuance within Gonzales’s first point of issue that must be addressed is his argument that

the State does not possess the province to determine whether evidence is exculpatory under Brady,

and thus, whether it should be disclosed. Gonzales contends he should not have been constrained
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by the State’s determination that the subject recording was not exculpatory. Gonzales contends

on appeal the State’s interest and his interest would have been best served by the trial judge’s in

camera inspection. The difficulty in analyzing this argument, however, is that Gonzales’s attorney

did not request the trial court conduct an in camera inspection and Article 39.14 does not compel

such an action.

       Prior to the enactment of the Michael Morton Act, the State was compelled to disclose to

the defendant all exculpatory material or information relative to a matter involved in the action.

See Brady, 373 U.S. at 87. This initial determination whether items were exculpatory, and thus

must be disclosed, was necessarily left to the prosecutor. See Pennsylvania v. Ritchie, 480 U.S.

39, 59 (1987). If uncertain, the best practice was for the prosecutor to provide the item to the trial

court for in camera review. Agurs, 427 U.S. at 106; Thomas v. State, 841 S.W.2d 399, 407 (Tex.

Crim. App. 1992). In this case, however, the prosecutor represented to the trial court the item was

not exculpatory, and therefore disclosure was not compelled under Brady. Based upon this

representation, the trial court denied Gonzales’s request for disclosure. Other than his contention

the trial court should have conducted a sua sponte in camera review, Gonzales provides no basis

to conclude the trial court erred in any way by following this common practice and procedure.

       In any event, in cases following Brady, many times, a trial court has conducted a sua sponte

in camera review of the contested items upon the defendant’s showing that the item sought was

material to the defense. See e.g. In re Hartman, 429 S.W.3d 680, 681 (Tex. App.—Beaumont

2014, no pet.); Dablosco v. State, 978 S.W.2d 236, 238 (Tex. App.—Texarkana 1998, pet. ref’d).

Therefore, determination whether the trial court should have conducted a sua sponte in camera

review utilizes the same legal standard as that employed to determine whether the trial court abused

its discretion by refusing to compel disclosure: whether the item is material to the defense.



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Accordingly, to address Gonzales’s argument within his first point of issue we will review the

record to determine whether the subject recording was material to Gonzales’s defense.

       In a situation such as this, when the requested item was never disclosed, examined in

camera, or made available for appellate review, determination of materiality must be made upon

evaluation of the requested information in the context of the entire record. Agurs, 427 U.S. at 112;

Quinones, 592 S.W.2d at 941. The defendant bears the burden to show the item sought is material

to the defense. Amos v. State, 819 S.W.2d 156, 159-60 (Tex. Crim. App. 1991), cert. denied, 504

U.S. 917 (1992); Boudreaux v. State, 878 S.W.2d 701, 706 (Tex. App.—Beaumont 1994, no pet.).

The mere possibility an item of undisclosed information might have helped the defense, or might

have affected the outcome of the trial, does not establish “materiality.” Agurs, 427 U.S. at 109-

10; Showery v. State, 690 S.W.2d 689, 700-01 (Tex. App.—El Paso 1985, pet. ref’d); Young v.

State, 644 S.W.2d 18, 21 (Tex. App.—Houston [14th Dist.] 1982, pet. ref’d). Further, pursuant to

Article 39.14, the defendant must show the undisclosed item was in the sole possession of the

State. TEX. CODE CRIM. PROC. ANN. art. 39.14(a); Young, 644 S.W.2d at 21 (interpreting Article

39.14 to mean “sole” possession of the State). In a situation in which the defendant has access to

the undisclosed item, or the ability to obtain it, the defendant may not be entitled to disclosure.

Young, 644 S.W.2d at 21.

       In the instant case, Gonzales failed to show the subject recording was material to his

defense or the trial court’s refusal to require disclosure was otherwise in violation of Article 39.14.

First, Mendez was Gonzales’s primary witness in support of his defense. Thus, although the

recording of Mendez’s telephone call was in the possession of the State, because Mendez testified

as a defense witness and cooperated with the defense, Gonzales had the opportunity to ascertain

its contents and evaluate whether it contained exculpatory information or would have created a

reasonable doubt that did not otherwise exist. Because Gonzales had access to discover the
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contents of the recording, under these facts, the trial court’s refusal to compel disclosure could not

have been violative of Article 39.14. See Young, 644 S.W.2d at 21.

       Second, Gonzales’s speculation that the subject recording contained potential exculpatory

evidence is insufficient to establish the subject recording contains information material to the

defense. See Young, 644 S.W.2d at 21. The mere possibility the subject recording might have

helped his defense or might have affected the outcome of the trial cannot establish materiality. See

Agurs, 427 U.S. at 109-10; Showery, 690 S.W.2d at 700-01; Young, 644 S.W.2d at 21. Because

Gonzales cannot establish materiality based upon speculation, the trial court did not abuse its

discretion by refusing to compel disclosure of the subject recording. See Agurs, 427 U.S. at 109-

10; Young, 644 S.W.2d at 21.

       Finally, the subject recording would have provided only corroborative or duplicative

evidence of Mendez’s favorable, in-court testimony presented during Gonzales’s case-in-chief.

As the State presented to the trial court at the time the issue arose, the State did not use the subject

recording against Gonzales or to discredit Mendez, and the State represented to the trial judge the

recording contained no exculpatory evidence. Mendez testified for Gonzales during his defense

case-in-chief. Mendez’s testimony was entirely favorable to Gonzales’s defense, as he testified

Gonzales was not involved in the events leading to the altercation with the victim, and was not in

the room during the fight which led to the murder. Thus, any information in the recorded telephone

call capable of creating a reasonable doubt as to Gonzales’s guilt would have been duplicative of

Mendez’s in court testimony.

       For these reasons, Gonzales failed to show the trial court abused its discretion in denying

Gonzales’s request for disclosure of the subject recording. Furthermore, because the subject

recording was not material to Gonzales’s defense or a matter involved in the action, the trial court’s

failure to conduct a sua sponte in camera inspection was not erroneous.
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       Gonzales’s first point of issue is overruled.

                                2. Assessment of Attorney’s Fees

       In his second point of issue, Gonzales argues the evidence is insufficient to support the trial

court’s assessment of attorney’s fees against him because the trial court found him to be indigent.

The State concedes the assessment of attorney’s fees is improper.

       A trial court may not assess the cost of legal services provided unless the court determines

the defendant has the financial ability to incur the costs. TEX. CODE CRIM. PROC. ANN. § 26.05(g)

(West Supp. 2014); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). “A defendant

who is determined by the court to be indigent is presumed to remain indigent for the remainder of

the proceedings in the case unless a material change in the defendant’s circumstances occurs.”

TEX. CODE CRIM. PROC. ANN. § 26.04(p) (West Supp. 2014); see Wiley v. State, 410 S.W.3d 313,

317 (Tex. Crim. App. 2013).

       Here, based upon its finding that Gonzales is indigent, the trial court appointed counsel to

represent him at both the trial and on appeal. However, in its final judgment the trial court assessed

court costs “PLUS ATTY FEES,” and in the bill of costs stated appointed attorney’s fees as

“TBD.” Because nothing in the record indicates a change in Gonzales’s financial circumstances,

any assessment of attorney’s fees was in error.

       Therefore, we sustain Gonzales’s second point of issue. Because Gonzales is indigent, we

modify trial court’s judgment to omit any assessment of attorney’s fees.

                                           CONCLUSION

       For the foregoing reasons, we AFFIRM the trial court’s judgment as modified.


                                                   Jason Pulliam, Justice

DO NOT PUBLISH


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