      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00238-CR
                                       NO. 03-11-00473-CR
                                       NO. 03-11-00474-CR
                                       NO. 03-11-00525-CR



                            Elridge Vanderhorst Hills, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
        NOS. 67020 & 67021, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Elridge Vanderhorst Hills, Jr., was charged with harassing Jimmy Evans

and Alexander Cruz-Nazario, officers at the Bell County Jail (the jail) where Hills was an inmate

at the time. See Tex. Penal Code Ann. § 22.01 (West 2011). Following a bench trial in which Hills

represented himself but was appointed standby counsel, the district court convicted Hills of the

charged offenses and sentenced him to fourteen years’ imprisonment.1 In three issues on appeal,

Hills, who is proceeding pro se, asserts that the State withheld exculpatory evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963); that the district court “furthered” the alleged Brady violation


       1
          Punishment was enhanced by Hills’s prior conviction in South Carolina for the offense of
distribution of crack cocaine. The record also reflects that Hills had a prior conviction in Texas for
the offense of assault on a public servant and a prior federal conviction for the offense of possession
of a firearm by a convicted felon.
by quashing what Hills characterizes as a subpoena duces tecum; and that standby counsel provided

ineffective assistance by “partaking” in the alleged Brady violation.2 We will affirm the judgments

of conviction.3


                                           BACKGROUND

                  The district court heard evidence that on September 5, 2010, Evans, a shift supervisor

in the jail, was escorting Hills to the jail’s “multipurpose room,” which, in addition to being used

for general recreational and assembly purposes, also contains a law library. Evans testified that when

       2
            The arguments in Hills’s brief are presented in such a manner as to be nearly
incomprehensible. In identifying his issues on appeal, we have construed the briefing rules liberally
as we are required to do, and looked to the substance of his contentions as best as we can discern
them. See Tex. R. App. P. 38.9. However, to the extent that Hills purports to raise any additional
issues in his brief, we find that they are inadequately briefed and are therefore waived. See Tex. R.
App. P. 38.1(i) (appellant’s brief must contain clear and concise argument for contentions made,
with appropriate citations to authorities and record); see also Faretta v. California, 422 U.S. 806,
834 n.46 (1975) (“The right of self-representation is not . . . a license not to comply with relevant
rules of procedural and substantive law.”); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim.
App. 1995) (“[T]he right to appellate review extends only to complaints made in accordance with
our rules of appellate procedure.”); Perez v. State, 261 S.W.3d 760, 764 n.2 (Tex. App.—Houston
[14th Dist.] 2008, pet. ref’d) (“[W]e hold a pro se appellant to the same standards as a licensed
attorney, and require [him] to comply with applicable laws and rules of procedure.”).
       3
           We have previously consolidated the causes on appeal for record and briefing purposes.
See Hills v. State, Nos. 03-11-00238-CR, 03-11-00473-CR, 03-11-00474-CR, 03-11-00525-CR,
2012 Tex. App. LEXIS 2125 (Tex. App.—Austin Mar. 15, 2012) (per curiam order). In appellate
cause number 03-11-00238-CR, Hills has filed a notice of appeal from an order relating to a pretrial
motion that he had filed seeking to recuse the district court judge, which was denied. In appellate
cause number 03-11-00525-CR, Hills has filed a notice of appeal from the district court’s denial
of his motion for new trial. In appellate cause number 03-11-00473-CR, Hills has filed a notice of
appeal from the final judgment of conviction in trial court cause number 67020. In appellate cause
number 03-11-00474-CR, Hills has filed a notice of appeal from the final judgment of conviction
in trial court cause number 67021. On appeal, Hills has not briefed the issues that were raised in his
recusal motion or in his motion for new trial. Accordingly, any issues involving those orders have
been waived. See Tex. R. App. P. 38.1.


                                                    2
they arrived at the entrance to the room, Hills requested to make copies of certain documents but

Evans refused the request. As a result, Hills became “agitated” and refused to enter the room despite

Evans ordering him to do so. According to Evans, during the ensuing confrontation, Hills told him,

“I ought to just spit in your face.” Evans explained that Hills then “hocked up” his saliva and spit in

Evans’s face and nose. Shortly thereafter, other officers arrived and restrained Hills. Evans further

testified that as he and other officers were taking Hills back to his cell, Hills stated, “I’ll do it again.

They never did anything to me about your case.4 Watch, I’ll do it again.” Hills then proceeded to

spit in Evans’s face a second time. This time, Hills’s saliva also contacted Cruz-Nazario, who had

assisted with restraining Hills and transporting him back to his cell. Cruz-Nazario testified that when

Hills spit in Evans’s face, the saliva also contacted the left side of his forehead. When the officers

finally secured Hills in his cell, Evans recalled, Hills “came to the door and said, ‘I’m just going to

have to murder one of you.’”

                The incident was observed in part by correctional officers Richard Taylor,

Ismael Colon, and Madeline Adkins, each of whom testified for the State and corroborated the

accounts of Evans and Cruz-Nazario. Also admitted into evidence was a video recording taken

from one of the security cameras in the jail which captured Hills’s first occurrence of spitting but

not the second.

                Hills testified in his defense. Hills denied the charges against him but claimed that

if he did spit in Evans’s face, he had been “provoked” into doing so by Evans, who, according to


        4
          The record does not specify the “case” to which Hills was referring. However, the record
reflects that Hills and Evans had a history of interaction at the jail which included Hills filing a
grievance against Evans for interfering with Hills’s “business” and “legal disputes.”

                                                     3
Hills, had antagonized him prior to the first instance of spitting and had choked him prior to the

second instance of spitting.5 Throughout trial, Hills asserted that the security camera should have

recorded Evans’s actions, and he claimed that because it did not, jail officials must have withheld

or tampered with the “missing” portions of the recording. However, the jail officials who testified

at trial explained that the camera simply failed to record the entirety of the incident, due to either a

camera malfunction or a lack of camera coverage in certain areas of the jail. It is the availability of

this recording and related evidence which forms the basis for Hills’s issues on appeal.


                                             ANALYSIS

Alleged Brady violation

                In his first issue, Hills asserts that the State violated Brady v. Maryland by

withholding certain portions of the video recording. See 373 U.S. at 87. The State responds that

there was no Brady violation because the prosecutors provided Hills with the only recording that

existed. The State also argues that Hills has failed to show how the allegedly withheld evidence was

material to his case.

                A defendant in a criminal case has no general right to pretrial discovery of evidence

in the State’s possession. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); Pena v. State,

353 S.W.3d 797, 809 n.10 (Tex. Crim. App. 2011); Hall v. State, 283 S.W.3d 137, 163

(Tex. App.—Austin 2009, pet. ref’d). However, under Brady and its progeny, there exists a federal

constitutional right to certain minimal discovery. See United States v. Bagley, 473 U.S. 667 (1985);


       5
         Evans testified that what Hills characterized as “choking” was instead Evans putting his
hands to Hills’s face in an attempt to restrain him and prevent further spitting.

                                                   4
United States v. Agurs, 427 U.S. 97 (1976); Pena, 353 S.W.3d at 809; Hall, 283 S.W.3d at 163.

That right is violated only if: (1) the State failed to disclose evidence, regardless of the prosecution’s

good or bad faith; (2) the withheld evidence is favorable to the accused; and (3) the evidence

is material, that is, there is a reasonable probability that had the evidence been disclosed, the

outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002); Hall, 283 S.W.3d at 163.6

                It does not appear that Hills has preserved a Brady complaint for our review. To

preserve error, a complaint must be “made to the trial court by a timely request, objection, or motion

that . . . state[s] the grounds for the ruling that the complaining party sought from the trial court

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). The record must also

show that the trial court “ruled on the request, objection, or motion, either expressly or implicitly”

or “refused to rule on the request, objection, or motion, and the complaining party objected to the

refusal.” Tex. R. App. P. 33.1(a)(2).

                Hills made no specific claim prior to trial, during trial, or in his motion for new trial

that the State had withheld exculpatory evidence in violation of Brady. Instead, after reviewing the

recording immediately prior to trial, Hills complained to the district court that the recording was

incomplete and that, as a result, “there’s no way to say” what had happened during the unrecorded




        6
         Additionally, the evidence central to the Brady claim must be admissible in court. See
Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993).



                                                    5
portion of the incident. In response, the district court stated, “Well, that’s what this trial is

about, sir.” Hills then questioned “why in this circumstance that [camera] angle was not given.” The

district court replied, “I’ll let you address that in the course of this trial.” Hills proceeded to do so,

extensively questioning several witnesses during trial regarding the operation of the security camera

and the recording that it had produced. Then, during his own testimony, Hills speculated, “And there

are [camera] angles that haven’t been presented. And I feel as though that’s been deliberately done

in an act of bad faith to hide further provokings [sic] on behalf of Corporeal Jimmy Evans because

he did choke me.” Finally, in his closing argument, Hills asserted, “The exhibits contribute to

highlighting or elucidating, or what provoked me into doing what I did, along with what I call [an]

act of bad faith for the other angle of the whole incident to be excluded. That’s . . . another showing

that my case . . . was damaged today, because that coverage would have clearly shown . . . the

man choking me.”

                Even if we were to liberally construe Hills’s trial arguments as a complaint that

the State had withheld exculpatory evidence in violation of Brady, the district court made no

express ruling on any such complaint. Therefore, for error to have been preserved, the district court

must have implicitly overruled Hills’s purported Brady complaint. On this record, there does not

appear to be any such ruling, either during trial or at the hearing on the motion for new trial.

Cf. Pena, 353 S.W.3d at 807-08 (explaining preservation of error in context of Brady violation and

holding that “the record of the motion for a new trial hearing reflects that the Brady issue was

preserved for appeal”); Clarke v. State, 270 S.W.3d 573, 579 (Tex. Crim. App. 2008) (holding that

appellant preserved error by arguing Brady claim at hearing on motion for new trial).



                                                    6
                However, even if we were to find that Hills properly raised a Brady complaint and

that the district court implicitly overruled that complaint, the record would support implied findings

by the district court that Hills had failed to establish a Brady violation. The record reflects that at

a pretrial hearing approximately three months prior to trial, the prosecutors provided the

video recording of the incident to Hills’s standby counsel. The record supports a finding by the

district court that no recording existed other than the one that the State provided. At trial, several

witnesses attempted to explain to Hills why the camera did not record the entire incident. When

Hills asked Evans why the camera did not record the second instance of spitting, Evans testified,

“Because not every inch of the jail is covered by a camera.” Later, Officer Taylor testified, “There

is a camera in front in the corner of the multipurpose door, but I don’t believe the camera shows the

hall where you spat the second time on him.” Additionally, there was testimony presented that the

camera might not have been functioning properly at the time of the incident. Officer Cruz-Nazario

testified that the camera “could work, but it had a very sensitive touch. It can automatically go on

its own or automatically go down.” When asked if there were “any problems with the camera,”

Officer Adkins testified, “Oh, yes, ma’am. We had a work order put in on that camera for at least

two months.” She added, “It was very sensitive. At certain times it would just go straight up into

the ceiling and just fixate on the ceiling. Then it would go straight to the floor. And it was all over

the place.” In response to a question as to why the entire incident was not “preserved” on video,

Major Robert Patterson, the jail administrator, testified, “I think when you say it’s not preserved, it’s

misleading. If the system was malfunction[ing], if one of the camera angles was not operating, it’s

not going to record. And it won’t be able to be retrieved, and therefore, we can’t archive it.” Based



                                                   7
on this and other testimony, the district court could have reasonably determined that there was no

other recording for the State to disclose. See Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim.

App. 1990) (“Brady and its progeny do not require prosecuting authorities to disclose exculpatory

information to defendants that the State does not have in its possession and that is not known to

exist.”); Harwood v. State, 961 S.W.2d 531, 545 (Tex. App.—San Antonio 1997, no pet.) (“The

State is not obligated to produce evidence of which it has no knowledge, and [appellant] has not

demonstrated that the State knew about or ever possessed the tapes.”).

               Moreover, even if another recording of the incident existed and the State had failed

to disclose it, the record further supports an implied finding that Hills failed to demonstrate how the

undisclosed evidence would have been material to his case. Undisclosed evidence is “material”

to guilt or punishment “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.” Hall, 283 S.W.3d

at 171 (quoting Bagley, 473 U.S. at 682). A “reasonable probability” is “a probability sufficient

to undermine confidence in the outcome.” Id. In other words, “[t]he question is not whether the

defendant would more likely than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy

of confidence.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Although the standard “is

not a sufficiency of the evidence test,” the defendant must “show[] that the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine confidence in the

verdict.” Id. (quoting Kyles, 514 U.S. at 434-35). “The mere possibility that an item of undisclosed

information might have helped the defense, or might have affected the outcome of the trial, does



                                                  8
not establish ‘materiality’ in the constitutional sense.” Hampton, 86 S.W.3d at 612 (quoting Agurs,

427 U.S. at 109). “Usually, a determination concerning the materiality prong of Brady involves

balancing the strength of the [favorable] evidence against the evidence supporting [the verdict].”

Id. at 613. We must accordingly consider “the entire body of evidence” presented at trial. Id.

               This was a case in which multiple eyewitnesses observed the offenses and testified

as to what they saw. Both of the alleged victims also testified, as did the defendant. Thus, there was

considerable testimony in this case that supported the verdict, in addition to the video recording that

was admitted. The district court could have reasonably concluded that additional video evidence

of the incident might have shown, at most, Evans “provoking” Hills in the manner that Hills had

claimed. The record would support an implied finding that there was not a reasonable probability

that such evidence would have changed the outcome of the proceeding. No claim was made that

Hills’s spitting was an act of self-defense as that term is defined in the penal code. See Tex. Penal

Code Ann. § 9.31 (West 2011). Therefore, the district court could have reasonably found that

Evans’s alleged conduct, even if true, would not have justified Hills’s spitting in the faces of Evans

and Cruz-Nazario. We overrule Hills’s first issue.


Subpoena duces tecum

               In his second issue, Hills asserts that the trial court “furthered” the alleged Brady

violation by quashing what he characterizes as a subpoena duces tecum. In this issue, it appears that

Hills is essentially arguing that the district court prevented him from establishing a Brady violation

by excluding certain testimony and records that, in Hills’s view, would have demonstrated that the

State had withheld exculpatory evidence.

                                                  9
               There is no merit to Hills’s claim. The document that Hills characterizes as a

subpoena duces tecum was, for the most part, merely a list of witnesses that Hills had wanted to

call in his defense.7 These witnesses were Major Robert Patterson, Lieutenant Charles Grogan,

District Clerk Sheila Norman, and an unspecified “designee” of the Texas Board of Pardons and

Paroles (the Board). Three of the four witnesses listed in the document—Patterson, Grogan, and

Norman—were subpoenaed by the district court per Hills’s request and appeared in court to testify.

Norman was called to the stand but did not testify.8 Patterson and Grogan, on the other hand,

testified extensively regarding the matters into which Hills inquired, although the district court

sustained several relevance objections by the State to certain questions posed by Hills. To the extent

that Hills is arguing that the district court abused its discretion in sustaining the State’s relevance

objections, we disagree. The excluded testimony related to jail policies and grievance procedures

that, the district court could have reasonably concluded, had nothing to do with the issue of whether

Hills had committed the offenses of which he was charged. The district court would not have abused

its discretion in finding that such testimony was not relevant to the case. See Tex. R. Evid. 401;

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (“[A] trial court’s ruling admitting

or excluding evidence is reviewed on appeal for abuse of discretion.”); Montgomery v. State,



       7
          A subpoena duces tecum, in contrast to an ordinary subpoena, is issued when a witness has
“in his possession any instrument of writing or other thing desired as evidence.” Tex. Code Crim.
Proc. Ann. art. 24.02 (West 2009). The subpoena duces tecum “may specify such evidence and
direct that the witness bring the same with him and produce it in court.” Id. With one exception
noted below, Hills’s document did not refer to any such evidence.
       8
          The first question that Hills asked Norman related to complaints that Hills had filed against
the jail. After the district court sustained a relevance objection by the State, Hills had no other
questions for the witness and she was excused.

                                                  10
810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (no abuse of discretion occurs so long as evidentiary

rulings are “within the zone of reasonable disagreement”).

                The fourth witness that Hills had wanted to appear was an unspecified designee of

the Board of Pardons and Paroles. Unlike the other subpoenaed witnesses, Hills requested that this

witness provide documentary evidence, specifically records relating to the “actual date and time”

when Hills was allegedly granted “parole in absentia.” The Board filed a motion to quash, which

the district court granted. During the hearing on the motion to quash, the Board stated that it was not

the custodian of records of the documents that Hills sought and thus could not provide copies of the

records as requested. The district court would not have abused its discretion in granting the motion

to quash on that ground. Additionally, “[a] subpoena duces tecum is not to be used as a discovery

weapon, but as an aid to discovery based upon a showing of materiality and relevance.” Reece

v. State, 878 S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.] 1994, no pet.). The district court

would not have abused its discretion in concluding that documents relating to whether and

when Hills was granted “parole in absentia” were not material to this case. We overrule Hills’s

second issue.


Ineffective assistance of standby counsel

                In his third issue, Hills asserts that standby counsel provided ineffective assistance

by “partaking” in the alleged Brady violation. In this issue, Hills appears to argue that standby

counsel failed to deliver the video recording to him in a timely manner and that, as a result, Hills was

unable to effectively use the recording in his defense.




                                                  11
               It is well settled that there is no constitutional right to hybrid representation. See

Dunn v. State, 819 S.W.2d 510, 525-26 (Tex. Crim. App. 1991); Scarbrough v. State, 777 S.W.2d

83, 92 (Tex. Crim. App. 1989); Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977).

Accordingly, federal courts have repeatedly held that there is no corresponding constitutional right

to the effective assistance of standby counsel. See, e.g., United States v. Oliver, 630 F.3d 397, 413-

14 (5th Cir. 2011); United States v. Morrison, 153 F.3d 34, 55 (2nd Cir. 1998); United States

v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992).9 Thus, absent circumstances that are not implicated

here, Hills cannot obtain relief on such a claim.

               Moreover, even assuming that Hills had a constitutional right to the effective

assistance of standby counsel, we could not conclude on this record that Hills has established that

standby counsel was ineffective. To be entitled to relief, Hills must prove by a preponderance of the

evidence that (1) counsel’s performance fell below an objective standard of reasonableness, and

(2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

Thus, the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct

so undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Id. at 686.

               The record reflects the following. At a pretrial hearing approximately three months

prior to trial, the State provided the video recording of the incident to Hills’s standby counsel. At




       9
        In fact, Hills was the appellant in one such case. See United States v. Hills, 425 Fed. Appx.
292, 296-97 (5th Cir. 2011) (per curiam).

                                                    12
that time, standby counsel informed the district court that he had the ability to play the recording

on his laptop computer and that he would “make an appointment with Mr. Hills in the next day or

two” so that Hills could review the recording. Approximately two months later, at another pretrial

hearing, Hills requested a continuance, informing the district court that he had not yet had an

opportunity to review the recording. In response, standby counsel explained that he had experienced

difficulty in playing the recording on his computer but that he was in the process of resolving the

issue. The district court directed standby counsel to show the recording to Hills within ten days.

               On the day of trial, Hills again complained that he had not had an opportunity to

review the recording. However, standby counsel informed the district court that he had visited the

jail three times but that Hills had refused to see him each time. Hills claimed that standby counsel

had not visited him until “the last minute,” but the district court reminded Hills that he was

representing himself and that it was “up to [Hills] whether or not [he] communicated with [standby

counsel].” After standby counsel again explained that he had attempted to visit with Hills on three

occasions, including the night before trial, but that Hills had refused to see him, the district court

took a recess and allowed Hills to review the recording in court. After Hills had reviewed the

recording, the trial began.

               We could not conclude on the above record that standby counsel’s performance fell

below an objective standard of reasonableness. Counsel stated that he had visited Hills at the jail

on three occasions but that Hills had refused to see him each time. As the district court explained,

because Hills was representing himself, it was his responsibility to communicate with standby




                                                 13
counsel in order to arrange a time to review the recording. That Hills chose not to communicate

with standby counsel does not establish that standby counsel’s performance was deficient.

               Moreover, even if standby counsel’s performance had been deficient, we could not

conclude on this record that there is a reasonable probability that but for counsel’s performance, the

result of the proceeding would have been different. As we have already explained, this was a case

that turned not on the video evidence but on the testimony of the eyewitnesses who had observed and

were involved in the incident. And, as Hills acknowledges, the recording does not show the entirety

of the incident. Thus, we could not conclude that if Hills had viewed the recording earlier, it would

have affected his defense to such a degree as to undermine our confidence in the outcome of the

proceeding. We overrule Hills’s third issue.


                                          CONCLUSION

               We affirm the judgments of the district court.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: July 20, 2012

Do Not Publish




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