                                  NO. 07-10-00129-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     APRIL 7, 2011


                      SCOTT EDWARD SATTLER, II, APPELLANT

                                            v.

                           THE STATE OF TEXAS, APPELLEE


          FROM THE COUNTY COURT AT LAW NO. 2 OF BRAZOS COUNTY;

          NO. 09-03497-CRM-CCL2; HONORABLE JAMES W. LOCKE, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant Scott Edward Sattler, II, appeals from his jury conviction of the offense

of assault bodily injury—dating violence and the resulting sentence of confinement for

365 days, suspended in favor of community supervision for a period of 18 months.

Through a single issue, appellant contends the trial court erred in denying his motion for

new trial, based on a Brady1 violation complaint. We will affirm.




      1
          Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
                                        Background

       On August 6, 2009, after an argument, appellant and his girlfriend of three weeks

had a physical altercation that resulted in injuries to the girlfriend. She testified he hit

her three times in the face and neck. Although appellant did not testify at trial, evidence

showed he claimed the girlfriend attacked him first.


       On appeal, much of appellant’s argument focuses on the evidence he suffered

bruises from blows from the girlfriend. At trial, the only law enforcement officer to testify

said he saw visible marks on the left side of the girlfriend’s neck but did not see any

visible marks on appellant despite his complaints that his face, arms, and right side hurt.

A doctor testified he examined appellant five days after the altercation and observed

three bruises, one on appellant’s upper right arm, one near his right clavicle and one

just above his knee.2 The doctor testified the bruises were consistent with appellant’s

statement that his girlfriend struck him on August 6.


       Appellant was arrested by a College Station police officer and was first taken to

the city jail. He was later transferred to the Brazos County jail. Medical intake was

performed at each jail. At trial, a College Station officer read from the medical intake

records from the city jail. The statements he read before the jury refer to complaints by


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          The record also contains evidence of an injury near appellant’s left eye. His
girlfriend admitted to throwing a yogurt carton at appellant, striking his left eye. The jury
also saw appellant’s booking photograph introduced by the defense at trial. Defense
counsel asked the College Station police officer, referring to the photograph, if a slightly
red mark on appellant’s eye might indicate he was struck. Defense counsel again
referenced the booking photograph in his closing argument at the guilt innocence
phase, noting “[t]he eye looks red. Looks to be a mark on the right inside of the eye.”

                                             2
appellant that his face and arms hurt from the fight. They also said there were no

visible marks except for old bruises.


       At the hearing on appellant’s motion for new trial, a Brazos County detention

officer testified the records collected at the county jail included appellant’s medical

history taken by the jail staff the morning he was booked into the county jail.           He

testified the records refer to bruises on appellant’s right thigh, right arm and shoulder

area. He also testified this information was most likely volunteered by appellant as

inmates are not asked to remove their clothing for the medical assessment. An

employee of appellant’s counsel also testified, stating she served a subpoena for

appellant’s records on the Brazos County jail. The subpoena was issued on the day of

trial, January 20, 2010. The employee collected the requested records the same day,

before closing arguments began. Although she collected the records in the courthouse,

she took them back to counsel’s office.


       The trial court denied appellant’s motion for new trial.


                                          Analysis

       In his sole point of error, appellant challenges the trial court’s denial of his motion

for new trial. He contends the State was required to disclose the county jail medical

intake records kept by the Brazos County Sheriff’s Office under Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant asserts the evidence of the

existence of bruises in those records specifically refuted the testimony of the only law

enforcement officer to testify at trial. If the new trial had been granted and the evidence


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admitted, appellant argues, there is a reasonable probability that the result of the trial

would have been different.


       At the guilt-innocence phase of trial, the court charged the jury on self-defense.

Tex. Penal Code Ann. § 9.31 (West 2010). The charge properly placed on the State the

burden to disprove appellant’s contention his use of force was justified by his

reasonable belief it was immediately necessary to protect himself against his girlfriend’s

use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (West 2010); see Rodriguez v.

State, 212 S.W.3d 819, 821 (Tex.App.—Austin 2006, no pet.), citing Zuliani v. State, 97

S.W.3d 589, 594 (Tex.Crim.App. 2003) (when justification is raised by the evidence, the

State bears the burden of proving beyond a reasonable doubt the defendant’s conduct

was not justified by self-defense).


       We review the granting or denial of a motion for new trial under an abuse of

discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). As

the reviewing court, we do not substitute our judgment for that of the trial court, rather

we decide whether the trial court's decision was arbitrary and unreasonable. Id. Further,

we must view the evidence in the light most favorable to the trial court's ruling and

presume all reasonable factual findings that could have been made against the losing

party were made. Id. Accordingly, a trial court abuses its discretion by denying a motion

for new trial only when no reasonable view of the record could support the trial court's

ruling. Id. The ruling of the trial court will be upheld if it is supported by the record and is

correct under any theory of law applicable to the case regardless of the trial court’s

stated basis. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App. 2007).

                                               4
         Under Brady, 373 U.S. 87, the State has an affirmative duty under the Due

Process Clause of the Fourteenth Amendment to disclose evidence favorable and

material to a defendant's guilt or punishment. Harm v. State, 183 S.W.3d 403, 406

(Tex.Crim.App. 2006). Once such exculpatory evidence comes into its possession, the

State's duty under Brady attaches, with or without a request from the defense for

disclosure. Id. For a court to find reversible error under Brady, a defendant 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. Hampton v. State, 86 S.W.3d 603, 612 (Tex.

Crim. App. 2002). We must analyze the alleged Brady violation "in light of all the other

evidence adduced at trial." Id. at 612-13. And we do not apply the separate harmless

error standard for reversal for constitutional error contained in rule 44.2(a) of the Texas

Rules of Appellate Procedure. Id. at 612.


         On appeal, the State argues appellant was aware of the exculpatory information,

and his medical records were fully accessible to him. It also argues appellant waived

any Brady complaint by not seeking a continuance. Finally, it contends appellant has

failed to show the county jail medical records were material. We focus on the State’s

contention regarding materiality, and do not address the others. The mere possibility

that an item of undisclosed information might have helped the defense, or might have

affected the outcome of the trial, does not establish “materiality” in the constitutional

sense.     Hampton, 86 S.W.3d at 612; West v. State, No. 10-07-00100-CR, 2008

Tex.App. LEXIS 9062, at *5-6 (Tex.App.—Waco Dec. 3, 2008, pet. dism’d) (mem. op.,
                                            5
not designated for publication). Rather, the inquiry is whether the State’s failure to

disclose the evidence undermines confidence in the jury’s verdict. Lempar v. State, 191

S.W.3d 230, 241 (Tex.App.—San Antonio 2005, pet. ref’d); Thomas v. State, 841

S.W.2d 399, 404 (Tex.Crim.App. 1992).


       Appellant contends the county jail medical intake record was material to his self-

defense claim because it documented he was bruised at the time he entered the jail.

He argues the State tried to cast doubt on his injuries. Appellant highlights the two

statements in the State’s closing argument in which the prosecutor said appellant never

complained of any injuries and decided “that maybe he was injured after his arrest.” He

also points us to the responding officer’s testimony that he did not see any injuries on

appellant the night of the altercation. Appellant asserts if the jury knew that a sheriff’s

office employee was aware appellant complained of bruises before appellant left the

custody of law enforcement but after the altercation, there is a reasonable probability

the jury would have concluded the State had failed to disprove he acted in self-defense.


       We find the trial court reasonably could have concluded the county jail medical

history notations of appellant’s bruises were not material under Brady.               The

reasonableness of appellant’s response to his girlfriend’s actions was the central focus

of the trial. Although the State disparaged the effectiveness of the girlfriend’s blows, it

did not dispute the existence of appellant’s bruises. During her testimony, the girlfriend

admitted she may have struck him with her hands, feet and knees. The jury also heard

from the physician, without objection, that he observed bruising on appellant’s right

upper arm, right clavicle and right thigh when he examined him five days after the

                                            6
altercation. The doctor’s medical notes documenting the bruises were admitted into

evidence along with pictures of each bruise. The bruises the doctor noted were in the

same locations as those referred to in the jail medical history.


       The officer responding to the 911 calls both appellant and the girlfriend made

testified he did not see any injuries on appellant the night of the altercation, took

appellant at his word that he was not injured, and did not believe appellant had been hit

by his girlfriend. But he also acknowledged some injuries do not become visible until

later. The trial court could have considered it clear that the officer’s testimony was

based on his observations shortly after the altercation.


       The absence of jailhouse documentation of appellant’s bruises did not keep him

from presenting his claim of self-defense to the jury. The trial court reasonably could

have considered the evidence was cumulative of the evidence of bruising appellant

introduced through the doctor’s testimony and the photographs he identified. See, e.g.,

McDonald v. State, No. 04-05-00128-CR, 2006 Tex.App. LEXIS 7416, at *15-16

(Tex.App.—San Antonio Aug. 23, 2006, no pet.) (mem. op., not designated for

publication) (finding asserted Brady evidence similar to other evidence seen by jury and

thus not material).


       As noted, appellant’s claim of self-defense raised the issue whether his use of

force against his girlfriend was justified by his reasonable belief it was immediately

necessary to protect himself against her use of unlawful force. The jury found the State

had disproved that contention beyond a reasonable doubt. Under his contention on

appeal, to satisfy his burden to demonstrate the materiality of the county jail medical
                                             7
history records, appellant was required to show the trial court there was a reasonable

probability the jury would have reached a contrary decision if he had been provided with

the records before trial. Viewing the entire record in the light most favorable to the trial

court's ruling, it did not abuse its discretion by finding appellant had failed to show such

a reasonable probability. The court did not err by denying appellant’s motion for new

trial. We resolve appellant’s sole issue against him and affirm the judgment of the trial

court.



                                                        James T. Campbell
                                                             Justice




Do not publish.




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