                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                      No. 07-12-00290-CR


                                JOSE PERALES, APPELLANT

                                                V.

                            THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 147th District Court
                                   Travis County, Texas
           Trial Court No. D-1-DC-12-904042, Honorable Clifford Brown, Presiding

                                     September 5, 2013

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

      Jose Perales appeals his conviction for aggravated assault.            His sole issue

concerns the trial court's refusal to grant him a mistrial due to a purported Brady1

violation. We affirm.

      Background

      The dispute evolved around a conversation or interview conducted by the

investigating detective. He was interviewing the mother (Suzie Rodriguez) of one of the

      1
       Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194,10 L.Ed.2d 215 (1963).
potential witnesses to the assault. 2 That interview was recorded and transferred on to a

“data disk.”      Furthermore, the recording allegedly contained a statement by the

detective informing Ms. Rodriguez that it was not his intent to prosecute her son. The

statement was not included in the detective’s written report.                     And, appellant’s trial

counsel represented that he had not been aware of that conversation or alleged

utterance until the trial had begun and the detective was undergoing cross-examination.

Consequently, appellant argued that the evidence was Brady material withheld by the

State. This resulted in him orally moving for a continuance and a mistrial. A several-

hour postponement in the trial was afforded counsel so that he could communicate with

Rodriguez. However, a mistrial was denied him.

        Analysis 3

        Whether a trial court errs in denying a mistrial depends on whether it abused its

discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.1999). It abuses its

discretion when its decision falls outside the zone of reasonable disagreement. Murray

v. State, 172 S.W.3d 782 (Tex. App.–Amarillo 2005, no pet.).

        Next, per Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

the State is obligated to disclose to a defendant exculpatory and impeaching evidence

in its possession. Brady, 373 U.S. at 87, 83 S.Ct. 1194; Pena v. State, 353 S.W.3d 797,


        2
          The assault consisted of appellant, while driving a vehicle, hitting a person riding a bike and
failing to stop thereafter. At least two other persons were in the car, one of whom was the son of Susie
Rodriguez.
        3
         To the extent that appellant may be contending that the trial court erred in overruling his motion
for continuance, we note that the request was orally made. Being so, it did not comport with the
applicable rules of procedure requiring a written motion containing factual allegations attested to by either
the State or the defendant. TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006) (specifying the
requirements for a motion to continue in a criminal case). Thus, appellant failed to take the steps
necessary to perfect the matter for review. Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App.
1999) (stating that nothing is preserved for review by an oral motion for continuance).

                                                     2
810 (Tex. Crim. App. 2011). However, the burden lies with the accused or complainant

to prove that the duty was not met.    Pitman v. State, 372 S.W.3d 261, 264 (Tex. App.–

Fort Worth 2012, pet. ref’d). This requires him to establish that 1) the State failed to

disclose the pertinent evidence, 2) the undisclosed data is exculpatory or susceptible to

being used as impeachment evidence favorable to the accused, and 3) the evidence is

material. Pena v. State, 353 S.W.3d at 809. Brady, however, does not require the

State to independently seek out exculpatory evidence on behalf of the accused or to

furnish him with exculpatory or mitigating evidence that is fully accessible to him from

other sources.    Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006).

Application of these rules leads us to reject appellant’s contention for several reasons.

       First, we have not been cited to the location within the appellate record of the

“data disk” in question.    Nor did our review uncover the location of the disk or a

transcription of the interview in question. Without either the disk or a transcription of its

contents being admitted or otherwise being made a part of the record, we cannot

accurately assess its tenor. In other words, it is rather difficult to say whether evidence

constitutes Brady material if we cannot see what that evidence is.

       Second, counsel for the State represented to the trial court:

       The State - - at this time, I am making the representation as an officer of
       the Court that I personally had that data disk available for counsel to
       review and specifically – because in that particular data disk that I
       reviewed I do not recall Ms. Rodriguez’s statement at all. I do not recall
       reviewing it. But specifically in that data disk we also have David
       Martinez’s second audiotaped conversation, and so that specifically was
       turned over to Mr. Wannamaker as part of the discovery process.

       I didn’t sit down with him and have him – I didn’t sit down with him the
       entire time that he viewed it, but that data disk was turned over to him to
       review. And if he missed it like I did, that’s completely different from saying
       we were hiding something from them.


                                             3
                                          *       *   *

      And, Judge, again, just to make sure the record is clear, he was given that
      disk to review as well.

Defense counsel responded with the following:

      When I went over to the DA's office, I requested an opportunity to hear
      and see disks. They were made available to me and then I sat at the
      little cubby station and watched videos. At no time was I given an
      audiotape or told that there was an audiotape in there of Susie. I had no
      reason to be looking for it because it's not in the reports. We have e-mail
      traffic, we have conversations, we have it on the record my requests for
      Brady and Giglio information and they have been very forthcoming about
      the immunity and the promises made to Fat Face, but not to the
      Rodriguezes.

[Emphasis added].

      This exchange is quite pertinent because of its relationship to the first element of

the burden appellant had to satisfy. Again, it was his obligation to prove that the State

withheld the evidence. Given the rather factual nature of that element, its establishment

depended upon the presence of evidence. That is, the trial court could hardly find that

the State did not disclose the data without some evidence showing that the data was

not disclosed. So, assuming arguendo that unsworn comments from an attorney are

evidence, Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex. App.–Austin 1990,

no writ) (stating that unsworn statements from counsel generally are not evidence), the

trial court had before it a scenario likening to what has come to be known as “he said,

she said.” And, most importantly, it was free to believe the State's attorney in rejecting

the demand for a mistrial. Simply put, it had evidence before it upon which it could have

decided that the alleged Brady material was indeed disclosed by the State. And, we

must defer to the trial court's resolution of fact issues. See Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997) (stating that when issues involve mixed questions


                                              4
of law and fact, we review the issues of law de novo but defer to the trial court's

determination of historical fact).

       Third, the foregoing exchange between the State's attorney and defense counsel

is also telling for one other reason. As indicated by that portion of the defense counsel's

utterance, he acknowledged that he received disks from the State. That he did not

receive “audiotapes” as well is irrelevant since the conversation in question was on a

“data disk.” (Emphasis added). Thus, he had the means to uncover the evidence about

which he complains, and Brady is not violated when the exculpatory or mitigating

evidence is fully accessible to appellant from other sources. Harm v. State, 183 S.W.3d

at 407.

       Nor is it of import that the State supposedly neglected to direct him to the

dialogue between the investigating officer and Suzie. Again, the State's burden is to

release Brady material to the defendant.             We know of no authority obligating the

prosecutor to counsel the defendant or his attorney about what within the stack of

material provided may or may not be interpreted in some way or another as Brady

material. Nor did appellant cite us to any such case. 4

       Given that the record before us contained sufficient information upon which the

trial court could have held that appellant failed to establish the first element of a Brady

violation, we cannot say that the refusal to grant a mistrial fell outside the zone of

reasonable disagreement.         Therefore, the decision was not an instance of abused

discretion.



       4
        See Taylor v. State, 93 S.W.3d 487 (Tex. App.–Texarkana 2002, pet ref’d) (finding that the
government is not required to facilitate the compilation of exculpatory material that could have been
compiled by the defense.)

                                                 5
      Appellant's issue is overruled, and the judgment is affirmed.



                                               Brian Quinn
                                               Chief Justice
Do not publish.




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