                                   NO. 07-07-0257-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   APRIL 17, 2009
                          ______________________________

                              MIKE CANALES, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2006-412400; HONORABLE CECIL G. PURYEAR, JUDGE
                       _______________________________


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


                                MEMORANDUM OPINION


       Appellant Mike Canales appeals from his conviction for sexual assault of a child and

the resulting sentence of ten years of confinement in the Institutional Division of the Texas

Department of Criminal Justice. By three issues, appellant contends his constitutional

rights were violated when the State failed to produce exculpatory evidence and the trial

court abused its discretion and violated his constitutional rights when it excluded the

testimony of a psychologist. We affirm.
                                       Background


       Although appellant does not challenge the sufficiency of the evidence supporting

his conviction, some factual recitation is necessary to an understanding of his appeal. By

an April 2006 indictment, the State alleged that, on or about February 18, 2006, appellant

caused his penis to penetrate the female sexual organ of [K.C.], a child younger than 17

years of age, and not his spouse.1 Following appellant’s plea of not guilty, the case was

tried to a jury.


       Evidence showed that, on several days during February 2006, appellant, then 43,

engaged in sexual intercourse with K.C., a 16 year-old girl. They also engaged in the use

of methamphetamine together. Those facts were not disputed. Nor was it disputed that

appellant, during the time K.C. was with him, provided methamphetamine to K.C. and sold

it to others. Appellant’s disputes with K.C.’s version of the facts center on her testimony

that on February 18, the two argued over some missing methamphetamine. She testified

appellant forcibly pulled her out of the shower in the Lubbock motel room in which they

were staying,2 took her into the bedroom where two other men were present, and took off

her clothes. These two men pulled her legs apart and held K.C. down while appellant “sat”

on her chest and held her arms down. He then forcefully engaged in vaginal intercourse

with her. K.C. further testified she was hurt during this encounter.


       1
           See Tex. Penal Code Ann. § 22.011 (Vernon 2003).
       2
        Different versions of the events of that day were produced at trial. A Lubbock
police officer testified that K.C. told him that after she and appellant argued about the
methamphetamine, she stayed in the room while appellant went to the bathroom. When
appellant came out, he grabbed K.C. and threw her on the bed.

                                            2
       The State’s evidence also included appellant’s written statement to Lubbock police,

in which he admitted he had sexual intercourse with a willing K.C. Appellant testified at the

punishment phase of trial, confessed to having sex with K.C. and acknowledged he was

guilty of sexual assault because she was under the age of 17 and not his spouse.3

Appellant maintained, however, that he did not use force against K.C. and that she lied

about the events of February 18. He testified, and a former girlfriend testified, that he was

not with K.C. at that particular time but was with the girlfriend.


       The jury found appellant guilty of sexual assault of a child and sentenced him to ten

years of imprisonment and a $5,000 fine. Appellant filed a motion for new trial that was

denied. This appeal followed.


                                           Issues


       Each of appellant’s three issues concerns the punishment phase of his trial.

Appellant was eligible for community supervision. His contention on appeal is that his

sentence would have been lighter, and the jury might well have recommended community

supervision, if he had been able to make use of exculpatory evidence before the jury.




       3
        Appellant testified K.C. told him she was 20 and he believed her. Mistake of fact
regarding a complainant’s age is not a defense to sexual assault of a child. Jackson v.
State, 889 S.W.2d 615 (Tex.App.–Houston [14th Dist.] 1994, pet. ref’d).

                                              3
                                         Analysis


                          Testimony Excluded By the Trial Court


          We begin with appellant’s second and third issues, by which he complains of the

trial court’s ruling disallowing the punishment-phase testimony of Dr. William Hoke, a

psychologist who examined K.C. for Child Protective Services.4 In his second issue, he

argues the trial court abused its discretion by denying his proffer of Hoke’s testimony and

by his third issue, contends the trial court’s exclusion of the same testimony violated his

right to confrontation of witnesses under the Sixth Amendment to the United States

Constitution.


Second Issue--Exclusion of Dr. Hoke’s Testimony


       Hoke testified outside the presence of the jury to his interviews of K.C. and her

mother, and to the results of the psychological tests he administered to K.C. The report

he prepared for CPS was admitted for the purpose of his voir dire testimony. Hoke testified

that his assessment indicated K.C. exhibited disorders including depressive disorder,

anxiety disorder and oppositional defiant disorder (“ODD”); and exhibited amphetamine

dependence and adolescent antisocial behavior. He diagnosed her also as suffering from

sexual and physical abuse, and reading and mathematics disorders. Appellant’s counsel

questioned Hoke about ODD.           Hoke explained the disorder is characterized by

oppositionality, rebelliousness and defiance. He said its symptoms often include “lying,


      4
       The Child Protective Services Division (“CPS”) of the Texas Department of Family
and Protective Services (“DFPS”).

                                             4
stealing, conduct difficulties, problems at school, being belligerent, acting out, talking back

[and disrespect] of authority.” Asked how he would expect the symptom of lying to “play

out,” he said an individual with ODD has a very difficult time accepting responsibility for her

behavior and may lie to get out of perceived trouble. He concluded by agreeing that he

was not saying K.C. lied on the witness stand but that such behavior is consistent with the

diagnosis. On cross-examination, he agreed with the prosecutor that he was speculating

as to what K.C. would do in a specific situation. The trial court did not allow Hoke to testify

before the jury.


       The trial court has broad discretion to determine the admissibility of evidence and

its ruling should not be reversed on appeal absent a clear abuse of discretion.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990) (op. on reh’g); Richards

v. State, 932 S.W.3d 213, 215 (Tex.App.–El Paso 1996, pet. ref’d). See also Willover v.

State, 70 S.W.3d 841,845 (Tex.Crim.App. 2002) (we must uphold the trial court’s ruling if

it was correct under any applicable theory of law). Unlike the guilt-innocence phase of

trial, “the question at punishment is not whether the defendant has committed a crime, but

instead, what sentence should be assessed.” Ellison v. State, 201 S.W.3d 714, 718

(Tex.Crim.App. 2006). Article 37.07 of the Code of Criminal Procedure permits evidence

of “any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. art.

37.07, § 3(a)(1) (Vernon 2007). Relevancy in the punishment phase is “a question of what

is helpful to the jury in determining the appropriate sentence for a particular defendant in

a particular case.” Tex. R. Evid. 401; Ellison, 201 S.W.3d at 718, citing Rogers v. State,

991 S.W.2d 263, 265 (Tex.Crim.App. 1999). Thus, the admissibility of evidence during


                                              5
“the punishment phase of a non-capital trial is a function of policy rather than a question

of logical relevance.” Ellison, 201 S.W.3d at 719. Nonetheless, a trial judge must operate

within the bounds of Texas Rules of Evidence 401, 402 and 403. Id. at 722.


       We find the trial court’s exclusion of Hoke’s testimony well within its discretion.

Hoke’s evaluation and report of K.C. simply listed the textbook symptoms associated with

the conditions he diagnosed. ODD was one of several debilitating conditions he diagnosed

in K.C. and a tendency to lie was only one of many characteristics associated with the

disorder.   Even if we accept appellant’s contention that K.C.’s credibility was a central

factor in the jury’s understanding of the circumstances of his offense, we find Hoke’s

evaluation and report hold little probative value with respect to the truthfulness of her

version of the circumstances. We see no abuse of discretion in the trial court’s conclusion

that his testimony would not be helpful to the jury in its determination of an appropriate

sentence.


       On appeal, appellant also emphasizes a statement in Hoke’s report that K.C. told

him a former boyfriend “got her ‘hooked’” on methamphetamine after putting it in her food

and drinks. Appellant points out K.C. made the same allegation against him in her direct

testimony. He argues the chances two men laced her food and drink with the drug are

sufficiently slim that the jury would have recognized K.C.’s testimony as untrue if they had

known of her statement to Hoke. See Fox v. State, 115 S.W.3d 550 (Tex.App.–Houston

[1st Dist.] 2002, pet. ref’d) (addressing the doctrine of chances). The record indicates

appellant’s contention here was not brought to the attention of the trial court. We therefore



                                             6
will not address it. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (an

appellant’s contention on appeal must comport with the specific objection made at trial).


       We overrule appellant’s second issue.


Third Issue–Confrontation Clause


       In appellant’s third issue, he contends exclusion of Hoke’s testimony violated his

right of confrontation under the Sixth Amendment to the United States Constitution.5


       We are unable to see a Confrontation Clause violation in this circumstance.6 U.S.

Const. amend VI. See generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177 (2004). Appellant relies primarily on Davis v. Alaska, 415 U.S. 308, 309,

94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and Thomas v. State, 669 S.W.2d 420, 421

(Tex.App.–Houston [1st Dist.] 1984, pet. ref’d). Both those cases involved limitations

placed on cross-examination of prosecution witnesses. Davis, 415 U.S. at 309; Thomas,

669 S.W.2d at 421. That is not the situation here. Appellant acknowledges that, for




       5
         Appellant’s issue also mentions Article I, Section 10 of the Texas Constitution, but
he did not set forth this as a basis of his complaint to the trial court. Tex. R. App. P. 33.1.
Further, on appeal, he cites no authority that the Texas Constitution offers any greater or
different protection than the United States Constitution on this point. We therefore will not
address the Texas constitutional claims separately. Black v. State, 26 S.W.3d 895, 896
n.4 (Tex.Crim.App. 2000); Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim.App. 1993).
       6
        Appellant’s argument in support of this third issue also includes a reference to a
statement written by K.C. in January 2007, concerning accusations against her father.
That statement was not offered into evidence, so we do not address it.

                                              7
tactical reasons, he chose not to cross-examine K.C.7 We agree with the State that

nothing in the trial court’s ruling excluding Hoke’s testimony precluded or impeded

appellant’s ability to recall K.C. for cross-examination. Appellant’s third issue is overruled.


                                        Brady Material


Issue One–Brady Violation


       In his first issue, appellant argues his Fourteenth Amendment right to a fair trial was

violated when the State failed to produce Hoke’s report and other exculpatory evidence in

violation of the rule announced in Brady v. Maryland.8 CPS became involved with K.C.

after the events of February 2006.          Trial testimony indicates that DFPS filed a

conservatorship proceeding concerning K.C. in another Lubbock County court. During

appellant’s trial, his counsel became aware that the documents he had been provided

through the open-file policy of the Lubbock County District Attorney’s office did not include

several documents from the CPS file held by the Department. Most significantly, the

documents provided did not include Hoke’s report.9             The State presents several



       7
          In argument at the close of the guilt-innocence phase of trial, appellant’s counsel
told the jury he “took a calculated risk” and “let [K.C.] go” because he “didn’t sign on to beat
up on teenage girls.” He further stated it was not necessary to do so because “if you
listened carefully, [the record] is abundant with inconsistencies, with statements that simply
don’t jive.”
       8
           373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
       9
        Contained within the complete CPS file was a letter authored by K.C. containing
possible recantations of previous sexual assault allegations against her father; a
memorandum from a CPS caseworker describing K.C. as a compulsive liar and a
manipulative individual; and two evaluations of K.C., one of which was Hoke’s report.

                                               8
contentions in response. It contends appellant did not preserve his Brady complaint; the

information was not material; appellant had the information in time to make use of it at trial

and did not request a continuance; the information was not subject to Brady because its

existence was not known to the prosecution and because CPS was not a part of the

“prosecution team;” and that it was not subject to Brady also because it was not

admissible. We address only one of the State’s contentions.10 The record shows the

information came to appellant’s attention during trial, and we agree he had the information

in time to make use of it.


       When the prosecution withholds evidence favorable to the defendant, due process

is violated when the evidence is material either to guilt or punishment. Wyatt v. State, 23

S.W.3d 18, 27 (Tex.Crim.App. 2000); Olivarez v. State, 171 S.W.3d 283, 290

(Tex.App.–Houston [14th Dist.] 2005, no pet.), citing Brady, 373 U.S. at 87. An alleged

Brady violation is analyzed in light of all the other evidence adduced at trial. Hampton v.

State, 86 S.W.3d 603, 612-13 (Tex.Crim.App. 2002). The State’s duty to reveal Brady

material attaches when the information comes into its possession, not when it is requested.

Thomas v. State, 841 S.W.2d 399, 407 (Tex.Crim.App. 1992). To establish reversible

error, a defendant 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. Hampton, 86 S.W.3d at 612. Evidence is “material” if there is a

       10
         We express no opinion on the State’s other contentions. However we do note our
disagreement with appellant’s argument that the failure of the State to disclose Hoke’s
report prior to trial allowed the prosecution to present to the jury, unchallenged, K.C.’s
version of the February 18 events. By the conclusion of the punishment-phase evidence,
both K.C. and appellant had given the jury their versions of those events.

                                              9
reasonable probability that had the evidence been disclosed to the defense the result of

the proceeding would have been different. Id.; Michaelwicz v. State, 186 S.W.3d 601, 613

(Tex.App.–Austin 2006, pet. ref’d), citing United States v. Bagley, 476 U.S. 667, 676, 105

S.Ct. 3375, 87 L.Ed.2d 481 (1985). A “reasonable probability” is a probability sufficient to

undermine the confidence in the outcome of the trial. Id. Incorporated in the third

“materiality” prong is a requirement that the defendant must be prejudiced by the State’s

failure to disclose the favorable evidence.         Harm v. State, 183 S.W.3d 403, 406

(Tex.Crim.App. 2006).


       Here, the record indicates a CPS caseworker appeared at the beginning of the third

day of trial testimony, in response to appellant’s subpoena. Appellant was then putting his

case-in-chief during the guilt-innocence phase before the jury. During testimony outside the

presence of the jury, the caseworker described the findings contained in Hoke’s report. The

affidavit of appellant’s counsel that accompanied his motion for new trial indicates also that

counsel reviewed the CPS file with the caseworker prior to her testimony. Hoke appeared

at trial later the same day with his report, also in response to appellant’s subpoena, and also

testified outside the presence of the jury.11 Although the trial court did not permit Hoke to

testify before the jury, appellant had the evidence of Hoke’s diagnosis of K.C. and the

contents of his report in time for him to make effective use of it at the trial’s punishment

phase. Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999) (prejudice is not shown

when the information is disclosed to the defendant in time for him to make effective use of

it at trial). Appellant contends he would have made a different decision to cross-examine


       11
            By this time, the trial was in the punishment phase.

                                               10
K.C. if Hoke’s report had been provided earlier. But, as we have noted, we see nothing that

would have precluded appellant from recalling K.C. after he became aware of Hoke’s report.

See Palmer v. State, 902 S.W.2d 561, 565 (Tex.App.–Houston [1st Dist.] 1995, no pet.) (in

a similar circumstance, finding Brady material came to light in time for defendant to make

use of it at trial); Givens v. State, 749 S.W.2d 954, 957 (Tex.App.–Fort Worth 1988, pet.

ref’d) (appellant discovered the statement early enough to make use of it at trial). If, after

appellant reviewed Hoke’s report or the other information, he needed more time to consider

its impact, it was incumbent on him to request a continuance or recess in the proceedings.

See Davis v. State, 992 S.W.2d 8, 12 (Tex.App.–Houston [1st Dist.] 1996, no pet.) (failed

to show prejudice from untimely disclosure of evidence where defendant did not request a

continuance to secure the presence of a witness he argued he would have subpoenaed if

he had been provided the complained-of information sooner).


       Finding appellant has not satisfied the materiality prong of a Brady complaint, we

overrule his first issue. Having overruled each of appellant’s issues, we affirm the judgment

of the trial court.




                                                         James T. Campbell
                                                              Justice




Do not publish.




                                             11
