                               NUMBER 13-11-00359-CR

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

CHARLIE PARK,                                                                Appellant,

                                             v.

THE STATE OF TEXAS,                                                            Appellee.


                       On appeal from the 93rd District Court
                            of Hidalgo County, Texas.


                          MEMORANDUM OPINION
     Before Chief Justice Valdez, Justices Benavides and Longoria
             Memorandum Opinion by Justice Benavides
          Appellant, Charlie Park, was convicted of indecency with a child, a second-degree

felony.     See TEX. PEN. CODE ANN. § 21.11 (West Supp. 2011).              Appellant was

sentenced to eight years in the Texas Department of Criminal Justice–Institutional

Division, but the sentence was suspended and Park was placed on community
supervision.     See id. § 12.33 (West Supp. 2011); TEX. CODE CRIM. PROC. art. 42.12

(West Supp. 2011). By two issues, Park argues that:                    (1) the jury charge contained

egregious error because it instructed for a conviction that was not unanimous; and (2)

the State failed to timely disclose exculpatory evidence. We affirm.1

                                           I. BACKGROUND2

        Park was a high school teacher at Johnny Economedes High School in Edinburg,

Texas.      C.F., one of the minor complainants in this case, attended this high school but

was not one of Park’s students.          C.F. was fourteen years old at the time of the alleged

incidents, and was active on the tennis, golf, and soccer varsity teams at her school.

C.F. met Park when he came to her tennis practice one day; Park was a friend of C.F.’s

tennis coach.      C.F. became more acquainted with Park when he offered to let her leave

her sports equipment bags in his classroom so that she would not have to carry them

with her throughout the day.

        C.F. testified that she began spending her eighth period class in Park’s

classroom.      Park did not have a class to teach during that time. Other female students

would sit in the classroom during this period as well.3 C.F. testified that Park would

        1
         This case is before this Court for the third time; however, this is the first time we address its
merits. In Park v. State, Cause No. 13-04-00683-CR, 2005 Tex. App. LEXIS 1646, at *2 (Tex.
App.—Corpus Christi Mar. 3, 2005, no pet.), we dismissed Park’s appeal for want of jurisdiction because it
was untimely filed. In Ex Parte Park, Cause No. 13-06-00615-CR, 2009 Tex. App. LEXIS 3118, at *6 (Tex.
App.—Corpus Christi May 7, 2009, no pet.), we affirmed the trial court’s denial of Parks’s application for
post-conviction habeas relief. Here, we finally address the merits of Parks’s brief because the trial court
granted an out-of-time appeal on March 28, 2011 based on Texas Code of Criminal Procedure article
11.072, and Parks timely perfected his appeal after this order. See TEX. CODE CRIM. PROC. ANN. art.
11.072 (West 2011).
        2
          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.
        3
          During trial, two other minor students made allegations that Parks was inappropriate with them,
as well. However, neither of these students are parties to this appeal.

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grade papers and joke around with the girls. She stated that he liked to talk about

sports with them, but also about sex.    He would ask the girls if they had started having

sex yet, and would also discuss some of his own personal exploits.

       C.F. testified that there were times when she and Park were in the classroom

alone with the door locked.    During one of these times, Park told C.F. that she “was very

athletic” and “a good looking girl for her age.” C.F. admitted that she liked this attention

and that it made her feel good about herself. C.F. testified that Park would give her side

hugs and rub her shoulders. The touching progressed when Park offered to massage

her shoulders after she admitted being sore from weight-lifting.     A few days later Park

massaged her shoulders again but then moved his hand down her shirt and massaged

her breast over her bra.      Another time, C.F. testified that Park asked her to make a

compact disc (“CD”) of sexually explicit songs for him.      As she was sitting at Park’s

teacher desk while they discussed the CD, Park came up behind her, began massaging

her shoulders, and pressed his genitals against her back.    On a different occasion, C.F.

stated she told appellant that she was sore again from lifting weights.    Park responded

that he was sore, too. When C.F. asked where he was sore, Park grabbed her hand

and placed it on his penis.

       During trial, C.F. denied ever producing a written statement to officials about the

affair while the matter was being investigated.   However, during the direct examination

of Child Protective Services employee Cesar Rodriguez, the parties learned that C.F. in

fact handwrote a statement to CPS.      Outside the presence of the jury, the defense took

Rodriguez on voir dire to learn more about this statement. The statement follows:

       Yes Mr. Park was a friend of mine & we were spotted out of campus, but
       the relationship we had was nothing more than friends. Never at one

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       point did I feel that he was a little bit too friendly or anything he told me was
       sexual.

       The State admitted that it had learned about the handwritten note the night before

Rodriguez testified and received a copy of it during the trial. The defense claimed

surprise, prosecutorial misconduct, and moved to suppress all of C.F.’s testimony, which

was denied.    After the jury was brought in again, the handwritten note was admitted into

evidence by the prosecution. Although Plata’s counsel had argued to the judge that it

should have had the opportunity to cross-examine C.F. about this statement while she

was on the stand, the defense did not elect to call her back to the stand.

       Park was initially indicted with four separate offenses: sexual performance by a

child (count one); sexual assault (count two); indecency with a child by contact (count

three); and attempted sexual assault of a child (count four).     However, only count three,

indecency with a child by contact, was submitted to the jury.        A jury convicted Park of

indecency with a child by contact, sentenced him to eight years’ imprisonment, but then

probated his sentence and imposed community supervision.           This appeal ensued.

                                II. UNANIMOUS CONVICTION

A.     Applicable Law

       By his first issue, Park contends his verdict was not unanimous. Texas law

requires that a jury reach a unanimous verdict about the specific crime that the

defendant committed.     See Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App.

2008) (citing TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. ANN. arts. 36.29(a), 37.02,

37.03, 45). This means that the jury must “agree upon a single and discrete incident

that would constitute the commission of the offense alleged.”          Stuhler v. State, 218

S.W.3d 706, 717 (Tex. Crim. App. 2007).

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       In Cosio v. State, the Texas Court of Criminal Appeals outlined several ways a

verdict could be non-unanimous.       See 353 S.W.3d 766, 772 (Tex. Crim. App. 2011).

For example, “non-unanimity may occur when the State charges one offense and

presents evidence that the defendant committed the charged offense on multiple but

separate occasions.” See id.       “Each of the multiple incidents individually establishes a

different offense or unit of prosecution.”   Id. (citing Ngo v. State, 175 S.W.3d 738, 748

(Tex. Crim. App. 2005)).   Park argues that this occurred here.

B.     Discussion

       Even though Park was indicted on four counts—sexual performance by a child

(count one), sexual assault (count two), indecency with a child by contact (count three),

and attempted sexual assault of a child (count four)—the only charge that was submitted

to the jury was count three. The charge for count three advised the jury as follows:

       Now, if you find from the evidence beyond a reasonable doubt that on or
       about the 30th day of March in Hidalgo County, Texas, the defendant,
       [Park], did then and there engage in sexual contact with [C.F.], the victim, a
       child younger than 17 years and not his spouse, by then and there causing
       [C.F.] to touch part of the genitals of the defendant, with intent to arouse
       and gratify the sexual desire of the defendant, then you will find the
       defendant guilty of the offense of indecency with a child as charged in the
       indictment.

       There was only one instance in the record where C.F. testified that she was

forced to touch Park’s genitals.    C.F. stated that once, while in Park’s classroom, she

told appellant that she was sore from lifting weights.    Parks then mentioned that he was

sore, too. When C.F. asked where he was sore, Parks grabbed her hand and placed it

on his penis.

       Park asserts that there were two other events that jury members could have

determined were also applicable to this scenario:        (1) when Park allegedly massaged

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C.F.’s breast and (2) when Park allegedly rubbed his genitals against C.F.’s back.

However, we are unpersuaded by this argument. The charge clearly provided that

defendant would be guilty if he caused C.F. “to touch part of the genitals of the

defendant.” Neither of the two incidents proposed by Park fit this scenario; they are

instances wherein the defendant touched C.F., not the other way around. We therefore

find appellant’s concern about a “non-unanimous verdict” unfounded because there was

no risk of the jury considering different acts upon which to convict on count three. Only

one episode matched the charge and application paragraph—when Park grabbed C.F.’s

hand and placed it on his penis. The verdict, therefore, was unanimous. We overrule

Park’s first issue.

                               III. EXCULPATORY EVIDENCE

A.     Applicable Law

       In his second issue, Park argues that the State failed to timely disclose

exculpatory evidence which violated his due process rights to a fair trial. In Brady v.

Maryland, the United States Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

whether 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). The purpose of this rule

is to avoid an unfair trial to the accused.   Id. at 86–88.   “A prosecution that withholds

evidence on demand of an accused which, if made available, would tend to exculpate

him or reduce the penalty helps shape a trial that bears heavily on the defendant.”    Id.

       Brady applies to scenarios where the discovery of information is known to the

prosecution but not to the defense.     Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim.


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App. 2011) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).      “Consequently,

‘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.’”   Id. (citing Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim. App.

1990)).

       A Brady violation occurs when three elements are met:       (1) a prosecutor fails to

disclose evidence; (2) which is favorable to the accused, and (3) which creates a

probability sufficient to undermine confidence in the outcome of a proceeding.      Palmer

v. State, 902 S.W.2d 561, 563 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (citing

Thomas v. State, 841 S.W.2d 399, 407 (Tex. Crim. App. 1992)).           The remedy for a

Brady violation is usually a new trial.     Id. at 564 (explaining that a new trial can be

conducted on punishment alone or both guilt and punishment). Where the prosecution,

however, has not completely failed to disclose exculpatory evidence but rather disclosed

it during trial, the remedy depends on whether the “disclosure came at a time when [the

defendant] was no longer able to put the material to effective use at trial, and that the

effect was to create a probability sufficient to undermine the confidence” in the outcome.

Id. at 564–65.

B.     Discussion

       Park claims that, prior to trial, he filed a “specific Brady request requesting all

information, reports, and memorandums from Child Protective Services and the alleged

victims in this case.” When he learned that C.F. made a statement essentially recanting

her outcry, he claimed a Brady violation.

       We hold, however, that there was no Brady violation in this instance. We refer to


                                              7
the trial record for a summary of what occurred.      The following portion of the trial

transcript occurred outside the presence of the jury, when C.F.’s statement was first

disclosed at trial. The CPS investigator, Rodriguez, was taken on voir dire by Park’s

counsel:

      [Park’s Counsel]:   Your Honor, may I read what has been tendered to us
                          into the record?

      The Court:          You may.

      [Park’s Counsel]:   I have been provided at this time, Your Honor,
                          pursuant to the Court’s clock at 2:15 PM, on June 6th,
                          a statement . . . . In the handwritten note it says, “Yes,
                          Mr. Park was a friend of mine and we were spotted out
                          of campus but the relationship we had was nothing
                          more than friends. Never at one point did I feel that
                          he was a little bit too friendly or anything he told me
                          was sexual.”

                          ....

                          I think we were entitled to have this prior to the
                          inception of trial. I think we should have been able to
                          use this in cross examination of [C.F.]. I think it’s
                          completely exculpatory and I think we were entitled to
                          this a long time ago, judge . . . . It’s not fair to the
                          Defense and now that [C.F.] is gone, we won’t be able
                          to cross examine on her. I honestly feel, judge, that
                          this was deliberate as well . . . If I can find it, they
                          should have had it, judge, especially, since the
                          evidence was within their own care, custody and
                          control.

      The State:          Judge, it wasn’t in my care, custody and control. . . .
                          (speaking to Rodriguez) Have you ever given me a
                          copy of that note?

      Rodriguez:          No.

      The Court:          Tell you what, . . . [C.F.] is not here. If you wish to
                          label this an exhibit and admit it, I’ll admit it.

      The State:          I have no problem if he wants to call [C.F.] back and

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                              ask her questions on it.

                              ....

      The Court:              If you want to call her back, you can call her back. If
                              you want to admit it without calling her back, we’ll
                              admit it without calling her back and you can wave it at
                              them during closing.

      [Park’s Counsel]:       I will ask that it be admitted, Your Honor.

      The trial court admitted the evidence when the jury returned to the courtroom.

Park’s counsel chose not to call C.F. back to the stand.        During closing, the defense

attorney focused on the alleged “trial by ambush.”       He argued as follows:

      The defense is entitled to any statement which is exculpatory, or takes the
      blame away from my client, before trial. We were not provided with a
      statement, the written statement, that allegedly was never made as per the
      testimony of [complainant] . . . The defense was entitled to this before this
      trial began. Trial by ambush . . . Now, the State is going to come back, I
      think, and probably say, well, I could have brought her back from Huntsville
      and my suggestion would be, I have no obligation to do that.
      The record shows that the State received a copy of the statement that day at trial.

Thus, the prosecution did not withhold this exculpatory statement, because it was never

in its possession. See Brady, 373 U.S. at 87; Pena, 353 S.W.3d at 810.

      Further, the statement was not suppressed. See Brady, 373 U.S. at 87.              C.F.’s

statement, wherein she claimed that her relationship with Park was “nothing more than

friends” and that nothing he told her “was sexual”, was admitted into evidence and the

defense was able to put it to “effective use” during closing arguments.     See Palmer, 902

S.W.2d at 564–65. Park’s counsel chose not to call C.F. back to question her about the

statement.   In his brief, Park argues that he would have looked “like the bad guy by

recalling” the complainant.    He also asserts that he would have liked the opportunity to

“spring[] the statement on the complainant at the very moment she perjured herself.”

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However, the fact that Park’s defense strategy or case presentation may have been

affected does not detract from the fact that that the jury had the opportunity to fully

consider the statement and still convicted the defendant.

       In light of the foregoing facts, we hold that no Brady violation occurred, and we

overrule Park’s second issue.

                                    IV. CONCLUSION

       Having overruled both of Park’s issues, we affirm the judgment of the trial court.




                                                       __________________________
                                                       GINA M. BENAVIDES,
                                                       Justice

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

Delivered and filed the
9th day of May, 2013.




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