                        NUMBER 13-12-00076-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

SAMMY LOPEZ,                                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
               Memorandum Opinion by Justice Perkes
      Appellant Sammy Lopez appeals his conviction of assault—family violence, see

TEX. PENAL CODE ANN. § 22.01 (West 2011), a third-degree felony, enhanced by prior

felony convictions to a second-degree felony, see id. § 42.12(a) (West Supp. 2011). A

jury found appellant guilty, and the trial court assessed punishment at twelve years’

confinement in the Texas Department of Criminal Justice, Institutional Division. By two
issues, appellant contends: (1) the trial court erred in denying his motion for new trial;

and (2) he received ineffective assistance of counsel. We affirm.

                                           I. BACKGROUND1

        Appellant’s issues both concern evidence of recorded telephone conversations

between appellant and the complaining witness while appellant was in jail pending trial for

the current offense. Appellant claims the recorded conversations contain impeachment

evidence against the complaining witness.                   Specifically, appellant’s trial attorney

asserted at the hearing on the new-trial motion that the recordings showed “an ongoing

relationship [between] the complaining witness” and appellant, and that the complaining

witness “lied to the police . . . .” It is undisputed that appellant’s trial counsel did not listen

to the recordings before trial. Appellant’s first issue is premised on a conclusion that the

State failed to comply with the trial court’s production order by not producing the

recordings.      Appellant’s second issue, in the alternative, is premised on his trial

attorney’s constitutionally deficient performance for not listening to the recordings that the

State made available.

        At the hearing on appellant’s motion for new trial, appellant’s trial attorney and the

State’s prosecutor agreed that the trial court ordered the State to produce the recordings

by November 22, 2011, but that the State failed to do so. The prosecutor asserted that

he was ill from November 18 to November 23, but that he made the recordings available

for pickup on November 23—one day after the trial court’s order required.                              The

prosecutor testified that on November 23, he “left them up front” in the District Attorney’s

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
                                                     2
office for appellant’s attorney to retrieve, and that he left appellant’s attorney a voice

message informing him that the recordings were available on November 23.                                 The

prosecutor stated he “checked when [he] left work that afternoon and . . . they had been

picked up by the time [he] left.” Appellant’s trial attorney, on the other hand, testified that

he did not obtain the recordings until after appellant’s trial, which began on November 28,

2011. Appellant’s attorney explained that he proceeded to trial without having insisted

on listening to the recordings because, after conferring with appellant, he and appellant

decided the recordings “probably wouldn’t add anything . . . to the trial.” Appellant’s

attorney characterized the recordings as cumulative of evidence that he had from two

letters that the complaining witness wrote.

                        II. DISCLOSURE OF IMPEACHMENT MATERIAL

        By his first issue, appellant contends the trial court erred in denying his motion for

new trial. Specifically, appellant complains that the State, by failing to disclose the

recordings, withheld impeachment material.2

        A.      Standard of Review

        Appellate issues involving claims brought in a motion for new trial are really

challenges to the trial court’s ruling on the motion. Cueva v. State, 339 S.W.3d 839,

856–57 (Tex. App.—Corpus Christi 2011, pet. ref’d) (citing Charles v. State, 146 S.W.3d

204, 208 (Tex. Crim. App. 2004)). We review a trial court’s ruling on a motion for new

trial under an abuse of discretion standard, reversing only if the trial judge’s opinion was

        2
           Appellant’s motion states that the State “withheld exculpatory evidence . . . .” At the hearing,
appellant’s counsel argued the State “withheld exculpatory evidence;” however, the “exculpatory evidence”
in question are the recordings that showed the complaining witness “lied about several points” or “lied to the
police.” As such, appellant’s argument at the hearing, repeated on appeal, is actually premised on the
impeaching nature of the evidence.
                                                      3
clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.

2012). We view the evidence in the light most favorable to the trial court’s ruling and

uphold the trial court’s ruling if it was within the zone of reasonable disagreement. Webb

v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). A trial court abuses its discretion

in denying a motion for new trial only when no reasonable view of the record could

support the trial court’s ruling. Id.

       B.       Brady v. Maryland

       Appellant did not mention Brady in his motion or at the hearing, but his argument

constitutes a Brady-violation claim. See U.S. v. Bagley, 473 U.S. 667, 676–77 (1985)

(holding non-disclosure of impeachment evidence is a Brady violation). On appeal, he

characterizes the argument advanced in his motion as a Brady-violation claim.

       Brady v. Maryland established “that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.”     373 U.S. 83, 87 (1963).        In order for a defendant to prevail on a

Brady-violation claim, he must show:

       (1)      the State failed to disclose evidence, regardless of the prosecution’s
                good or bad faith;

       (2)      the withheld evidence is favorable to him;

       (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.

Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (citing Hampton v. State, 86

S.W.3d 603, 612 (Tex. Crim. App. 2002)).

                                                4
       C.    Analysis

       Appellant’s Brady-violation claim struggles under all three Brady prongs, but

dissatisfaction of one is sufficient to defeat the claim. See id. The trial court ruled as

follows:

       My recollection is [the complaining witness] testified about those letters.
       And she also testified about the circumstances under which she wrote
       those letters, so all that was before the jury, you know.

       So I’m going to deny the motion.

       The trial court’s explanation relates to the materiality prong of Brady. “If the

witness acknowledges impeaching facts during [her] testimony, non[-]disclosed

information bearing on those facts is not ‘material’ . . . .” Pitman v. State, 372 S.W.3d

361, 272–73 (Tex. App.—Fort Worth 2012, pet. ref’d) (citing 42 GEORGE E. DIX & JOHN M.

SCHMOLESKY, Texas Practice Series: Criminal Practice & Procedure § 27:19 (3d ed.

2011)); see also Etheridge v. State, 903 S.W.2d 1, 20 (Tex. Crim. App. 1994),

superseded by statute on other grounds as stated in Diaz v. State, 110 S.W.3d 181, 184

(Tex. App.—San Antonio 2003, pet. ref’d).           The following excerpt is from the

cross-examination of the complaining witness:

       Q:    And—and I wanna be clear, too, that you did admit to writing a letter
             and—or an affidavit, uh, retracting, um, any statements you made to
             the police.

       A:    Um, that’s a different—that’s a separate incident.           This has
             happened more than what we’re talking about this—

             ....

       Q:    [T]he letter or affidavit where you are saying that he never hit you, or
             stuff, that . . . was a separate incident? When did this separate—
             next incident happen?

                                            5
       A:     I think in July.

              ....

       Q:     July. Um, did you call the police at that time, too?

       A:     Yes, sir.

       Q:     And the police came, and so forth?

       A:     Yes, sir.

       Q:     Okay. Um, but then, you did retract that, saying it didn’t happen.

       A:     Yes, sir.

       Q:     Okay. Now this affidavit, was it in your own handwriting?

       A:     Yes, sir.

       Q:     Um, and it was, uh, pretty neat handwriting—

       A:     Um-hum.

       Q:     [S]o it appeared you weren’t under any stress.

       A:     No. He told me—he had what I needed to write.

               ....

       Q:     All right. But then again, you did sign this in affidavit form.

       A:     Yes.

       Q:     As you stated then, um, you made up the story.

       A:     Yeah.

Appellant also elicited testimony from the complaining witness that she continued to write

love letters to him after he assaulted her.




                                              6
        Appellant’s motion for new trial is founded on the State’s alleged failure to produce

recordings that would show “an ongoing relationship [between] the complaining witness”

and appellant, and that the complaining witness “lied to police” and “lied about several

points.”3 The information about which appellant complains was also presented through

the testimony of the complaining witness during the trial. Thus, the recordings evidence

included the same facts and would be cumulative and redundant.                                Because the

complaining witness acknowledged these facts during her testimony, we agree with the

trial court that the records are not material to appellant’s case, and there was therefore no

Brady violation. See Pitman, 372 S.W.3d at 272–73; Etheridge, 903 S.W.2d at 20.

Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the

trial court’s holding was not clearly erroneous or arbitrary. See Riley, 378 S.W.3d at 457;

Webb, 232 S.W.3d at 112. We overrule appellant’s first issue.

                          III. INEFFECTIVE ASSISTANCE OF COUNSEL

        By his second issue, appellant argues that he “does not believe that trial counsel

was ineffective,” but advances an ineffective-assistance claim in the event this Court

believes the State prosecutor’s testimony that appellant’s trial counsel “picked up the

recordings and did not listen to them prior to trial.” Otherwise, appellant concedes, “[a]s

a whole, it appears . . . trial counsel was very proactive prior to trial and during trial. He




        3
            On appeal, appellant avers discrepancies between the recordings and the witness’s testimony
about recanting her accusation of a subsequent assault undermine the “entire testimony” and provides
“significant impeachment material.” The alleged discrepancies, which appellant did not present at the
hearing, are actually minor, and the cited information from the recordings is only repetitive of her propensity
to lie (especially to protect appellant—a fact that does not help appellant’s argument), which appellant
effectively demonstrated by impeaching her with her recantation.

                                                      7
filed motions and obtain[ed] rulings for disclosure of evidence.      He made strategic

decisions with the consent of [a]ppellant.”

       To prevail on an ineffective assistance of counsel claim, appellant must show that

(1) counsel’s representation fell below an objective standard of reasonableness, and

(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);

Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). Our

review of counsel’s representation is highly deferential, and we will find ineffective

assistance only if appellant rebuts the strong presumption that his counsel’s conduct fell

within the wide range of reasonable professional assistance. Strickland, 466 U.S. at

689; Lopez, 343 S.W.3d at 142; Jaynes, 216 S.W.3d at 851. The record must contain

evidence of counsel’s reasoning, or lack thereof, to rebut the presumption. Moreno v.

State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref’d). We review the

totality of representation rather than isolated instances in determining whether trial

counsel was ineffective. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.

2006); Lopez, 343 S.W.3d at 143.

       Appellant did not argue his ineffective-assistance claim in his motion for new trial

or at the hearing on that motion. Further, appellant’s trial counsel maintained that he did

not receive the recordings until after the trial was held. As such, the record is not

sufficiently developed to allow us to do more than speculate regarding appellant’s trial

counsel’s strategy, which we cannot do. See Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994); see also Downs v. State, 244 S.W.3d 511, 515 (Tex. App.—Fort


                                              8
Worth 2007, pet. ref’d) (ruling that the record was insufficient because the defendant did

not raise ineffective-assistance claims in his motion for new trial or at its hearing).

         Even considering the merits of appellant’s ineffective-assistance claim, we

conclude that it would fail the second Strickland prong for the same reasons that the

evidence failed the materiality prong of Brady. Compare Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011) (citing Strickland v. Washington, 466 U.S. 668, 694

(1984)) (ruling that to satisfy the second Strickland prong, “appellant must show that there

is a reasonable probability, or a probability sufficient to undermine the confidence in the

outcome, that [but for counsel’s deficient performance] the result of the proceeding would

have been different.”), with Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011)

(citing Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002)) (holding “material

evidence” means “there is a reasonable probability that had the evidence been disclosed,

the outcome of the trial would have been different.”). Appellant cannot show that the

trial’s outcome would have been different because the impeachment evidence was

cumulative of impeachment evidence available for trial. We overrule appellant’s second

issue.

                                       IV. CONCLUSION

         We affirm the trial court’s judgment.

                                                     GREGORY T. PERKES
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
27th day of June, 2013.

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