                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-12-00428-CR

                                      Shawn Michael LEWIS,
                                            Appellant

                                                v.
                                            The State of
                                       The STATE of Texas,
                                             Appellee

                     From the 437th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CR-2755
                               Honorable Pat Priest, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: April 16, 2014

AFFIRMED

           Shawn Michael Lewis appeals his conviction for murder arising out of a shooting on New

Year’s Eve asserting, among other issues, that he did not have the requisite intent to commit

murder. We overrule Lewis’s issues and affirm the trial court’s judgment.

                             BACKGROUND AND PROCEDURAL HISTORY

           On December 31, 2008, approximately fifteen to twenty people were gathered at the home

of Shawn Lewis’s parents. A group of young men who had known each other since they were

children were present. Shawn was there, along with his brother Johnny Lewis who was cutting
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hair in the garage. They were both friends with Carl Bennett, who was the last haircut of the night.

A verbal confrontation involving Craig Griffin, Claude Pinesette, and Pierre Johnson broke out in

front of the garage after Pierre arrived. Hearing the loud argument, Johnny walked out of the

garage with his SKS assault rifle and tried to calm the situation. Johnny testified he thought Claude

had a gun and that Craig was trying to take the gun from Claude to shoot Pierre. However, neither

Johnny nor anyone else testified they saw any weapons that night other than Johnny’s assault rifle.

There was conflicting testimony as to what happened next.

       Both Johnny and Craig testified that Shawn grabbed the assault rifle away from Johnny.

Craig testified that Shawn pointed the rifle at him and pulled the trigger, but it only “clicked” three

times because the safety was on. Shawn then pointed the rifle at the ground and took the safety

off. Because Shawn’s finger was still on the trigger, the gun began firing. Craig stated the barrel

of the gun started “raising up” when it began firing. Craig stated about 20 bullets came out. He

was grazed by a bullet in the leg before he got down behind a blue car. After the shooting stopped,

Shawn put the rifle in his girlfriend’s car and drove away. Carl Bennett, who had come out of the

garage and was standing near Craig, was shot several times and killed. Craig admitted initially

lying to the police, but then decided to tell the truth about what happened.

       Both Johnny and Pualani “Lani” Poloa, Shawn’s girlfriend at the time, testified they heard

a single gunshot first before the rapid fire of the assault rifle. Johnny acknowledged that after he

came outside with his assault rifle, which was fully loaded with the safety on, Shawn grabbed the

rifle out of his hand. But, Johnny insisted that he only saw Shawn pointing the rifle at the ground

and did not see Shawn shoot the rifle. However, Johnny agreed that if 19 shell casings were later

found, they must have come from his gun because it was the only assault rifle there that night.

Johnny testified he ran inside when the shooting began and came back out after it stopped. He



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saw Carl on the ground and tried to help him. Shawn was not there and did not come back that

night. Johnny never saw his assault rifle again.

        Lani’s testimony differed in that she stated Shawn had told her it was time to leave and

they were standing near her car when the shooting started. She testified that Shawn was not

anywhere near the source of the shooting. She confirmed seeing Johnny holding his assault rifle

and trying to diffuse the argument in the front yard; she did not see any other guns that night. After

she heard a single gunshot, Johnny ran past her toward the house, knocking her to the ground

where she stayed until the other rapid-fire shooting stopped. Johnny did not have his assault rifle

when he knocked her down. After the shooting stopped, she and Shawn got in her car and left.

        Carl Bennett was shot in the head, as well as his thigh and each wrist, and died at the scene.

Johnny, Craig, and Claude remained at the scene and spoke to police. Shawn did not return to the

house and the assault rifle was never recovered. Shawn was subsequently indicted for Bennett’s

murder. A jury found him guilty and the court sentenced him to 35 years’ imprisonment.

                                              ANALYSIS

        On appeal, Shawn Lewis raises several issues, contending that (1) the trial court erred in

failing to dismiss the indictment for the State’s failure to afford him a speedy trial, (2) the evidence

is insufficient to support a finding that he engaged in intentional and knowing conduct, rather than

merely reckless conduct, (3) the prosecutor’s withholding of exculpatory evidence constituted

prosecutorial misconduct, (4) the jury charge allowed conviction on an unlawful basis, and (5) the

court erred in failing to grant his motion for new trial based on newly discovered evidence.

Speedy Trial

        Lewis asserts he was denied his right to a speedy trial in violation of the federal and state

constitutions, and that the trial court erred in denying his motion to dismiss the indictment based

on the speedy trial violation. See U.S. CONST. amend. VI, XIV; TEX. CONST. art. I, § 10; see State
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v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San Antonio 1998, no pet.) (speedy trial inquiry is

the same under both United States and Texas constitutions). The remedy for a violation of the

right to a speedy trial is dismissal of the case. State v. Johnson, 821 S.W.2d 609, 612 n.2 (Tex.

Crim. App. 1991); Puckett v. State, 279 S.W.3d 434, 436 (Tex. App.—Texarkana 2009). In

reviewing the trial court’s decision on a speedy trial claim, we apply a bifurcated standard in which

we review the court’s determination of historical facts under the abuse of discretion standard, but

review de novo the trial court’s application of the law to the facts. Cantu v. State, 253 S.W.3d 273,

282 (Tex. Crim. App. 2008); Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).

When, as here, the defendant does not prevail on a speedy trial claim, we presume the trial court

resolved any disputed fact issues in favor of the State, and we defer to the implied findings of fact

supported by the record. Zamorano, 84 S.W.3d at 648.

        In determining whether a defendant’s right to a speedy trial has been violated, we weigh

and balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right;

and (4) prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530

(1972) (creating balancing test for reviewing speedy trial claims under federal constitution).

Although the speedy trial right under the Texas Constitution exists independently of the Sixth

Amendment guarantee, claims of denial of the state speedy trial right are analyzed under the same

four Barker factors. Cantu, 253 S.W.3d at 280 n.16; see State v. Jones, 168 S.W.3d 339, 346 (Tex.

App.—Dallas 2005, pet. ref’d) (applying Barker factors to motion to dismiss for speedy trial

violation). Once the Barker test is triggered, we analyze the speedy trial claim by first weighing

the strength of the Barker factors and then balancing their relative weights in light of the conduct

of both the prosecution and the defendant. Cantu, 253 S.W.3d at 281. None of the Barker factors

is a necessary or sufficient condition to finding a speedy trial violation. Id. Rather, the factors are

related and should be evaluated in conjunction with any other relevant considerations. Id.
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       1. Length of the Delay

       The length of the delay is the triggering mechanism for an analysis of the Barker factors.

Barker, 407 U.S. at 530. The length of the delay is measured from the time the defendant is

arrested or formally accused. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Texas

courts have generally held that a delay of eight months or more is “presumptively prejudicial” and

will trigger a speedy trial analysis. See Zamorano, 84 S.W.3d at 649 n.26; see also Orand v. State,

254 S.W.3d 560, 566 (Tex. App.—Fort Worth 2008, pet. ref’d) (quoting Doggett v. United States,

505 U.S. 647, 652 n.1 (1992)) (“Depending on the nature of the charges, a post-accusation delay

of about one year is ‘presumptively prejudicial.’”). Here, the State concedes, and we agree, that

the approximately three-year delay between the date of Lewis’s indictment and his trial is

sufficiently lengthy to trigger a speedy trial analysis under Barker.

       2. Reason for the Delay

       The State bears the initial burden of justifying the delay. Emery v. State, 881 S.W.2d 702,

708 (Tex. Crim. App. 1994); Rangel, 980 S.W.2d at 843. Different weights are assigned to

different reasons for a delay, with a deliberate attempt to delay trial weighing heavily against the

State, but more neutral reasons such as negligence or overcrowded dockets weighing against the

State, but less heavily. Zamorano, 84 S.W.3d at 649-50; State v. Munoz, 991 S.W.2d 818, 822

(Tex. Crim. App. 1999). At the hearing on Lewis’s motion for speedy trial, the State admitted a

series of exhibits showing there were other felonies, including several murder cases, being tried in

that court on the dates of Lewis’s trial settings. The prosecutor explained that approximately 50

murder cases were transferred to this new trial court when it was created two years ago. As of the

hearing date, there were still 30 murder cases pending trial in that court, with the oldest cases being

tried first; six or seven of those murder cases were older than Lewis’s case. The record shows

Lewis’s defense counsel filed one motion for continuance in December 2010 when he had eye
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surgery, and the State requested no continuances. At the conclusion of the hearing, the trial court

found the majority of the delay was caused by the overcrowded trial docket. Since the majority of

the delay was caused by a neutral reason, i.e., the overcrowded docket, this factor weighs against

the State, but only slightly. See Prihoda v. State, 352 S.W.3d 796, 804-05 (Tex. App.—San

Antonio 2011, pet. ref’d).

       3. Assertion of Right to Speedy Trial

       The third Barker factor is the defendant’s assertion of his right to a speedy trial. Barker,

407 U.S. at 531; Zamorano, 84 S.W.3d at 651; Munoz, 991 S.W.2d at 825. A defendant is

responsible for asserting or demanding his right to a speedy trial. Munoz, 991 S.W.2d at 825. A

lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Russell

v. State, 90 S.W.3d 865, 873 (Tex. App.—San Antonio 2002, pet. ref’d). Similarly, a defendant’s

request for dismissal rather than a prompt trial setting may attenuate the strength of his speedy trial

complaint. Rangel, 980 S.W.2d at 844. A defendant’s timely assertion of his right to a speedy

trial is generally weighed against the State, while a defendant’s filing of a motion to dismiss is

weighed against the defendant. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

       In this case, Lewis was arrested for Bennett’s murder on January 9, 2009. He made bond

and was released one month later. On March 25, 2009, Lewis was indicted for the murder, along

with three unrelated offenses—aggravated assault with a deadly weapon, aggravated robbery, and

hindering apprehension. Bonds were set on those three charges, but Lewis was remanded without

bond on the murder charge and remained in jail. On January 25, 2011, Lewis filed a motion

requesting a speedy trial. A hearing on the motion was held on October 19, 2011. At the hearing,

Lewis’s counsel represented that he had been verbally asking for a trial setting all along before

filing the written motion. Lewis testified that he had asked his attorney to push for a quick trial

and expressed his disappointment with the repeated resets, stating that his memory of the shooting
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was dimming and he had lost contact with family members who were present that night. The State

initially opposed the motion, but when defense counsel clarified that he was not requesting a

dismissal or even the setting of bond, but merely a prompt trial date, the State acquiesced in the

granting of the motion. Upon granting the request for a speedy trial, the visiting judge ordered the

case to be set for trial “as soon as practical” based on the court’s caseload. Lewis’s case went to

trial five months later on March 12, 2012. At that time, defense counsel moved to dismiss the

indictment for failure to provide a speedy trial. Before denying the motion to dismiss and

proceeding with trial, the court considered the transcript from the prior speedy trial hearing plus

additional evidence presented by the State.

        Although the filing of a motion to dismiss may weaken a defendant’s claim that he was

denied a speedy trial, in this instance Lewis first sought a speedy trial setting through his attorney’s

verbal requests for a quick trial date and the filing of a written motion for speedy trial. See Jones,

168 S.W.3d at 348; Zamorano, 84 S.W.3d at 651 n.40; see also State v. Guerrero, 110 S.W.3d

155, 161 (Tex. App.—San Antonio 2003, no pet.). At the speedy trial hearing, defense counsel

stressed that Lewis was seeking a prompt trial date, not a dismissal or release on bond; the request

for a speedy trial setting was granted. Lewis’s filing of a motion to dismiss five months later when

his case finally went to trial does not undermine his assertion of the right to a speedy trial under

these circumstances. Therefore, this third Barker factor weighs in favor of Lewis.

        4. Prejudice Caused by the Delay

        Because “pretrial delay is often both inevitable and wholly justifiable,” the fourth Barker

factor examines whether and to what extent the delay has prejudiced the defendant. Cantu, 253

S.W.3d at 285 (quoting Doggett, 505 U.S. at 656 and citing Barker, 407 U.S. at 532). Proof of

actual prejudice is not required in situations where the delay is excessive because such a delay

“presumptively compromises the reliability of a trial in ways that neither party can prove or even
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identify.” Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (citing Doggett, 505 U.S.

at 655). Once the defendant makes a prima facie showing of prejudice based on excessive delay,

the burden shifts to the State to show the defendant suffered “no serious prejudice beyond that

which ensued from the ordinary and inevitable delay.” Munoz, 991 S.W.2d at 826 (quoting Ex

parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)). A defendant who has made a

prima facie showing of prejudice will be entitled to relief unless the presumption of prejudice is

(1) persuasively rebutted by the State, or (2) extenuated by the defendant’s acquiescence in the

delay. Doggett, 505 U.S. at 658; Gonzales v. State, No. PD-0724-12, 2013 WL 765575, at *1

(Tex. Crim. App. Feb. 27, 2013) (not designated for publication). We have already concluded that

the three-year delay was excessive and that Lewis did not acquiesce in the delay because, as

discussed above, he asserted his right to a speedy trial. Thus, we must determine whether the State

persuasively rebutted the presumption of prejudice caused by the delay.

       At the October 2011 speedy trial hearing, Lewis asserted that due to the long delay he had

lost contact with his mother, father, and brother, who were potential witnesses because they were

present the night of the shooting; he claimed no knowledge of where to find them. At the hearing

on Lewis’s motion to dismiss, the State admitted a jail recording of a phone call between Lewis

and his aunt in which Lewis states that he is not trying to locate any of his family members to

testify at trial. The State also presented the testimony of their investigator Roy Beckham who

stated that he easily located Lewis’s mother, brother Johnny, and sister-in-law at a house in

Kerrville, Texas and served them with the State’s subpoenas for trial. Beckham stated that Lewis’s

father was also at the house in Kerrville. After this evidence was presented at the hearing, defense

counsel conceded the “unavailability of the witnesses” issue had been resolved by the State’s

evidence.



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       With respect to the dimming of Lewis’s memory of the details of the offense, the State

argued that Lewis had made a DVD statement to police a few days after the murder when his

memory was presumably fresh. The State argued that Lewis could refresh his memory by viewing

his recorded statement. In addition, the prosecutor argued that Lewis’s memory of the events could

have been preserved by taking written notes or making a video during defense counsel’s many

meetings with Lewis about the case while he was in jail awaiting trial. Finally, with respect to

anxiety caused by his confinement, the State pointed out that some portions of Lewis’s pretrial

incarceration were due to the other three pending charges, and that he never filed a motion for

bond on the murder charge.

       We conclude the State’s evidence effectively rebutted the presumption of prejudice by

showing that Lewis’s defense was not substantially impaired despite the delay in his trial. See

Gonzales, 2013 WL 765575, at *1; Doggett, 505 U.S. at 654 n.4. Because the State satisfied its

burden to persuasively rebut the presumption of prejudice by showing no “serious” impairment to

Lewis’s defense as a result of the delay, this fourth Barker factor weighs in favor of the State. See

Munoz, 991 S.W.2d at 826.

Balancing the Barker Factors

       While the three-year delay between indictment and trial is presumptively prejudicial, the

record shows the reason for the lengthy delay was the overcrowded docket in the trial court, not

the actions of the State. Thus, this weighs against the State, but not heavily. Lewis asserted his

right to a speedy trial so this factor weighs in favor of Lewis and against the State. As to prejudice,

however, we have concluded that the State effectively rebutted the presumption that Lewis’s

defense was impaired by the delay. The State showed that Lewis’s mother, father, brother, and

sister-in-law were easily found and served with subpoenas, and that by his own admission Lewis

was not attempting to locate and call them as defense witnesses. The record shows Johnny Lewis
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in fact testified at trial. Further, Lewis made a DVD statement to police shortly after the murder

which recorded his version of the events before time dimmed his memory. Balancing the relative

weights of the Barker factors, and presuming the trial court resolved any disputed fact issues in

favor of the State, we conclude that Lewis failed to show that he was entitled to relief for lack of

a speedy trial. See Cantu, 253 S.W.3d at 281; see also Zamorano, 84 S.W.3d at 648; Russell, 90

S.W.3d at 874-75 (affirming denial of speedy trial dismissal when first three factors do not

overcome the clear absence of any prejudice). We therefore hold the trial court did not err in

denying Lewis’s motion to dismiss the indictment based on a speedy trial violation. See Barker,

407 U.S. at 522.

Sufficiency of the Evidence: Intentional and Knowing Conduct

       Lewis contends there is legally insufficient evidence to support the jury’s finding on the

culpability element of murder. Specifically, Lewis argues the evidence shows he pointed the gun

at the ground before it started firing and, therefore, the shooting of Bennett was an accident. Lewis

asserts he is only guilty of reckless conduct, not knowing and intentional conduct as required to be

guilty of murder.

       In reviewing legal sufficiency, we consider all the evidence, both direct and circumstantial,

in the light most favorable to the verdict to determine whether any rational trier of fact could have

found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The

essential elements of the crime are the elements of the offense as defined by the hypothetically

correct jury charge for the case, which is one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012) (quoting
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Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The law “as authorized by the

indictment” consists of the statutory elements of the offense as modified by the charging

instrument. Johnson, 364 S.W.3d at 294; Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App.

2000). We must resolve any inconsistencies in the evidence in favor of the jury’s verdict, deferring

to its assessment of the credibility and weight of the evidence. Curry, 30 S.W.3d at 406; Williams

v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

       As applied to this case, the offense of murder is committed when a person intentionally or

knowingly causes the death of an individual, or when he intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL

CODE ANN. § 19.02(b)(1), (2) (West 2011); Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim.

App. 2003) (murder is a result of conduct offense which requires that the culpable mental state

relate to the result of the conduct, i.e., causing death). The jury was instructed that it could convict

Lewis of murder under either theory of liability.

       As noted, supra, there was conflicting testimony about the shooting. In assessing all the

witnesses’ credibility and weighing all the evidence, the jury could have resolved the conflicts by

choosing to believe Craig Griffin’s testimony about the shooting and to disbelieve the conflicting

portions of the testimony by Lewis’s brother and girlfriend. See Brooks, 323 S.W.3d at 899 (it is

the jury’s role to resolve conflicts in the testimony, assess credibility and weigh the evidence, and

draw reasonable inferences from the basic facts to the ultimate facts). Griffin testified that after

Lewis took the rifle away from his brother, Lewis pointed the rifle at him (Griffin) and pulled the

trigger; the gun made three clicks because the safety was on. That action by Lewis supports a

reasonable inference that he intended, and unsuccessfully attempted, to shoot Griffin with the

assault rifle. Griffin testified that Lewis’s next action was to point the rifle down and remove the

safety. The intentional conduct of removing the safety further supports the inference that Lewis
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intended to shoot Griffin with the assault rifle, thereby causing him serious bodily injury. In

addition, Griffin’s testimony that Lewis kept his finger on the trigger as he removed the safety,

with the result that the gun immediately began firing as the barrel raised up, supports an inference

that Lewis was knowingly and intentionally firing the assault rifle at Griffin.

       Griffin testified about 20 rounds were fired in his direction. Police recovered 19 shell

casings matching the ammunition for the SKS assault rifle at the scene. Griffin stated he was

grazed in the leg by one bullet before hiding behind a blue car. Officers testified that a blue Suzuki

parked at the scene had multiple bullet holes. Other testimony and evidence showed that Bennett,

who was standing next to Griffin, was hit by five bullets, with a shot to the head causing Bennett’s

death. The use of a deadly weapon, along with the large number of rounds that were fired and the

fact that two people were shot, resulting in one’s death, supports a finding of intent to kill and/or

intent to cause serious bodily injury. See Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim. App.

1992) (use of deadly weapon, particularly firing a semi-automatic rifle, in a tavern filled with

people is sufficient to support reasonable inference of specific intent to kill and conviction for

intentional or knowing murder); see also Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App.

1999) (firing a gun in the direction of an individual is an act clearly dangerous to human life within

meaning of murder statute). Finally, testimony by Griffin and other witnesses showed that Lewis

left the scene immediately after the shooting while Griffin, Claude, and Johnny remained at the

scene with Bennett. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (jury may

draw inference of guilt from defendant’s flight as it evinces a consciousness of guilt).

       Viewing the evidence in the light most favorable to the jury’s verdict and deferring to the

jury’s assessments of credibility and weight of the evidence, we conclude there is legally sufficient

evidence that Lewis intended to kill Griffin, or to cause Griffin serious bodily injury and fired an

assault rifle at him multiple times thereby committing an act clearly dangerous to human life,
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which caused an individual’s death. TEX. PENAL CODE ANN. § 19.02(b)(2); Garza Vega v. State,

267 S.W.3d 912, 915 (Tex. Crim. App. 2008) (if hypothetically correct jury charge would

authorize jury to convict on alternative theories of liability, evidence is sufficient if it is sufficient

under either theory of liability); Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App. 1992).

Under the principle of transferred intent, Lewis is criminally responsible for Bennett’s death even

though the evidence shows Lewis intended to shoot Griffin, not Bennett. TEX. PENAL CODE ANN.

§ 6.04(b)(2) (West 2011). A classic example of the proper application of transferred intent is when

a defendant fires a weapon at an intended victim who is within a group of other people; the offense

is murder whether the intended victim is killed or a different person in the group is killed. Roberts

v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008); see Bell v. State, 169 S.W.3d 384, 396

(Tex. App.—Fort Worth 2005, pet. ref’d); see also Pettigrew v. State, 999 S.W.2d 810, 812-13

(Tex. App.—Tyler 1999, no pet.) (evidence that innocent bystander was fatally shot during gang

confrontation was sufficient to support murder conviction under theory of transferred intent);

Ojeda v. State, 945 S.W.2d 197, 201 (Tex. App.—San Antonio 1997, no pet.) (intent to harm the

intended victim transfers to the actual victim). Under Malik, our legal sufficiency analysis includes

the law of transferred intent as part of the hypothetically correct jury charge. See Malik, 953

S.W.2d at 239-40 (recognizing need for proper sufficiency review to include important concepts

such as the law of parties and the law of transferred intent that are not contained in the indictment

but would be contained in a hypothetically correct jury charge); see also Trevino v. State, 228

S.W.3d 729, 737 (Tex. App.—Corpus Christi 2006, pet. ref’d) (noting that hypothetically correct

jury charge under Malik would include doctrine of transferred intent under facts of case).

Accordingly, we conclude the evidence is sufficient to support the jury’s finding that Lewis is

guilty of murder.



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Prosecutorial Misconduct: Withholding Exculpatory Evidence

        Lewis next argues that prosecutorial misconduct in suppressing exculpatory evidence

deprived him of due process and requires a new trial. A Brady 1 violation occurs when a prosecutor

fails to disclose in a timely manner evidence favorable to the defendant which creates a probability

sufficient to undermine confidence in the outcome of the proceeding. Pena v. State, 353 S.W.3d

797, 812 (Tex. Crim. App. 2011); Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992).

This duty of disclosure on the State includes favorable information in the possession of the

prosecutors as well as police agencies or other members of the prosecutorial team. Kyles v.

Whitley, 514 U.S. 419, 437-38 (1995); see TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005)

(prosecution must not suppress facts or secrete witnesses capable of establishing accused’s

innocence). In order to establish a Brady violation, Lewis 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, i.e., there is a reasonable probability that had

the evidence been disclosed, the outcome of the trial would have been different. Ex parte

Richardson, 70 S.W.3d 865, 871 (Tex. Crim. App. 2002); see Pena, 353 S.W.3d at 812 (“mere

possibility” that undisclosed evidence might have assisted the defense or affected the outcome

does not establish materiality in the constitutional sense).

        Specifically, Lewis contends the State committed a Brady violation by withholding the

following evidence: (1) when the police vacuumed the inside of Lani’s car they found no gunshot

residue (“GSR”); (2) the GSR tests done on Craig Griffin, Johnny Lewis, and Lewis’s father

Johnny Satterwhite were positive; (3) the report of forensic scientist Tammy Sligh analyzing the

shell casings found at the scene and matching them to the ammunition for an SKS assault rifle;


1
  Brady v. Maryland, 373 U.S. 83, 87 (1963) (State has a duty to disclose all potentially exculpatory information to
the defendant).

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and (4) Joshua Lewis as a witness to the shooting. The State argues there was no Brady violation

because the evidence referenced by Lewis was either not shown to exist, was not exculpatory, was

disclosed as soon as it became available, or was unknown to the State. We agree.

       With respect to the first piece of evidence, when asked on cross-examination, Detective

Davila initially testified that Lani’s car was vacuumed for GSR and none was found; he agreed a

negative result was exculpatory evidence favorable to Lewis. However, when defense counsel

asked for the report showing those results, Davila could not find any report in his file. On redirect,

Davila conceded that he did not know whether the vacuuming was in fact ever done; he assumed

the vacuuming yielded a negative result because he was never given a report showing a positive

result. The forensic scientist, Michael Martinez, testified he did not see any evidence that was

submitted from vacuuming in this case. Lewis has failed to prove that the exculpatory evidence

in fact exists, and has thus failed to prove the State failed to disclose it. Richardson, 70 S.W.3d at

871.

       Davila also testified he requested GSR testing on every person who was outside at the time

of the shooting. With the exception of Johnny’s kit which was tested by a colleague in 2009,

Martinez testified that he tested the other GSR kits one month prior to trial at the prosecutor’s

request. The testing found GSR particles on Johnny, Griffin, and Satterwhite. Martinez stated his

report was completed on March 6, 2012, the week before trial, and was sent to Davila and the

prosecutor that day or the next day. The prosecutor represented to the court that she sent the

defense Martinez’s report the same day she received it. Based on the record, Martinez’s report

was not withheld by the State—it was disclosed as soon as it was received. Further, when there is

delayed disclosure of evidence favorable to the defense during trial, the defendant’s failure to

request a continuance waives any Brady violation. Williams v. State, 995 S.W.2d 754, 761-62

(Tex. App.—San Antonio 1999, no pet.); Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.—
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Austin 2002, pet. ref’d). Lewis did not move for a continuance based on the late completion of

the GSR testing and issuance of Martinez’s report.

           Lewis next complains about the November 20, 2009 forensic firearms report by Tammy

Sligh which found that the nineteen shell cartridges recovered from the crime scene all came from

the same weapon. The record shows, however, that the State disclosed Sligh’s report to defense

counsel two years before trial. One of the prosecutors testified that he gave defense counsel a copy

of Sligh’s report at the April 29, 2010 hearing 2 and documented it in the State’s file; the defense

did not contradict that testimony. Finally, Lewis complains the State did not disclose the existence

of an additional witness to the shooting—his other brother, Joshua Lewis. There is no indication

in the record that the State had any knowledge, as apparently neither did Lewis or defense counsel,

that Joshua witnessed the events of the shooting.

           A Brady claim must have some support in the record to show the prosecution’s failure to

comply with its duty of disclosure. This record contains no such support. Lewis’s issue is

therefore overruled.

Jury Charge

           Lewis asserts the jury charge contained error because it permitted the jury to find him guilty

on an unlawful basis. Specifically, he contends the jury should have been instructed to find him

“not guilty” of murder before proceeding to consider whether he was guilty of the lesser-included

offense of manslaughter. We disagree. The jury was properly instructed to first consider whether

Lewis was guilty of murder and given the applicable elements of murder, and then instructed that,

if they had a reasonable doubt as to whether Lewis was guilty of murder, to next consider whether

he was guilty of manslaughter. See TEX. PENAL CODE ANN. § 19.02 (b)(1),(2). The jury was then



2
    The prosecutor also testified he gave defense counsel a copy of the GSR report on Johnny Lewis at the hearing.

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properly instructed on the elements of manslaughter, and instructed that, if they had a reasonable

doubt that Lewis was guilty of manslaughter, they should find him “not guilty.” TEX. PENAL CODE

ANN. § 19.04(a) (West 2011). Lewis does not cite us to any authority showing the charge was

erroneous, and we do not find it to be so. See TEX. CODE CRIM. PROC. ANN. arts. 37.08, 37.09(3)

(West 2006) (lesser-included offenses); see also id., art. 36.14 (West 2007) (court must instruct

jury on law applicable to the case). Lewis also briefly argues the court should have included

criminally negligent homicide as another lesser-included offense instruction in the charge, but does

not point us to evidence in the record showing Lewis failed to perceive the risks of his conduct,

i.e., that he acted with criminal negligence. See TEX. PENAL CODE ANN. §§ 6.03(d), 19.05 (West

2011). Further, Lewis did not request such an instruction and has failed to show it caused him

egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

We therefore overrule this issue.

Motion for New Trial

       Lewis filed a motion for new trial based on “newly discovered evidence” and attached the

affidavit of Lewis’s other brother, Joshua Lewis. In the affidavit, Joshua states he was present and

witnessed the killing of Carl Bennett when he ran into the line of fire coming from Craig Griffin’s

rifle, and that Shawn Lewis did not shoot Bennett. No hearing was held on the motion and it was

overruled by operation of law. Lewis now argues the trial court erred in failing to hold a hearing

on the motion to develop the new evidence and should have granted him a new trial based on

Joshua’s affidavit.

       As the State points out, the record does not show that Lewis presented the motion for new

trial to the trial court or ever requested a hearing on the motion. TEX. R. APP. P. 21.6; Rozell v.

State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005) (in addition to timely filing motion for new

trial, defendant must present it to trial court which means giving the court actual notice that he
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filed the motion and is requesting a hearing on the motion). If no request for a hearing was

presented to the trial court, we do not reach the question of whether the trial court abused its

discretion in failing to hold a hearing on the motion for new trial. Rozell, 176 S.W.3d at 230.

       With respect to whether the court erred in failing to grant a new trial based on Joshua’s

affidavit, we cannot say the court abused its discretion in light of the testimony in the record that

Joshua Lewis lived in the family home along with Shawn and Johnny Lewis, suggesting he was

equally known and available to the defense before trial, and the lack of any showing that Joshua’s

testimony could not have been discovered earlier. See Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.

Crim. App. 2002) (to be entitled to grant of new trial based on newly discovered evidence,

appellant must show, among other things, that the evidence was unknown or unavailable to him at

the time of trial, and that his failure to discover or obtain the evidence was not due to a lack of

diligence). Further, Lewis cites to Rule 21.3(e) as requiring the grant of a new trial under the

present circumstances, but has failed to show that Joshua was “kept from the court by force, threats,

or fraud” or that his testimony was “intentionally withheld” by the State. See TEX. R. APP. P.

21.3(e). Lewis has failed to show the court abused its discretion in failing to hold a hearing on his

motion for new trial and in failing to grant a new trial.

                                            CONCLUSION

       Based on the foregoing reasons, we overrule all of Lewis’s issues on appeal and affirm the

judgment of the trial court.


                                                   Rebeca C. Martinez, Justice


DO NOT PUBLISH




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