                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00431-CR

                                        Julian Cedrick BELL,
                                               Appellant

                                                 v.
                                               The of
                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR8623
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 7, 2013.

REVERSED AND REMANDED FOR NEW PUNISHMENT HEARING

           A jury convicted Julian Cedrick Bell of murder, and the trial court sentenced him to life

imprisonment. On appeal, Bell contends the trial court erred in denying his motion for new trial

because the State failed to disclose exculpatory evidence and the jury improperly shifted the burden

of proof to him. Bell further contends the record contains no evidence to support the enhancement

allegation and the sentence imposed by the trial court is cruel and unusual punishment. We sustain

Bell’s issue regarding the enhancement allegation, but overrule his remaining issues. The trial

court’s judgment of conviction is affirmed, but the portion of the judgment imposing sentence is
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reversed. The cause is remanded to the trial court for a new punishment hearing. See TEX. CODE

CRIM. PROC. ANN. art. 44.29(b) (West Supp. 2012).

                                     MOTION FOR NEW TRIAL

       Bell contends the trial court erred in denying his motion for new trial. “We review a trial

court’s denial of a motion for new trial under an abuse of discretion standard.” McQuarrie v. State,

380 S.W.3d 145, 150 (Tex. Crim. App. 2012). “‘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. (quoting Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)). “A trial court abuses

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

support the trial court’s ruling.” Id.

Exculpatory Evidence

       The first ground on which Bell contends the trial court erred in denying his motion for new

trial is that the State failed to disclose exculpatory evidence, specifically the testimony of James

Carl Scott. At the hearing on Bell’s motion for new trial, Scott testified he was present in the hotel

room when the victim, Jason Ross, was shot. He testified several people were going in and out of

the room before the shooting and that Ross was shot when he answered a knock at his door. After

the first shot, Scott dove behind the bed and ran into the restroom. Two other men also took cover

in the restroom, but Scott stated he did not know them. Scott believed he was the last person to

leave the room after the shooting.

       Scott did not see who shot Ross and did not recall whether Bell came into the room that

day. Scott testified he informed the State of the events he observed when he was interviewed.

Scott testified the investigators who interviewed him a second time became upset. They stated

Scott identified Bell as the shooter during his first interview, but that Scott was changing his story

and refusing to identify the shooter in the second interview.
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           During trial, two other men testified, who had been present in the room when Ross was

shot. One of the men identified Bell as the shooter, while the other man did not see the shooter.

Another witness, who was standing in the breezeway outside his room located several doors down

from Ross’s room, also identified Bell as the shooter. At the conclusion of the hearing on the

motion for new trial, Bell’s attorney argued Scott’s testimony contradicted the other witnesses’

testimony. The trial court disagreed and denied the motion.

           “The standard under Brady v. Maryland 1 is that the prosecutorial suppression of

exculpatory evidence violates due process when the evidence is material either to guilt or to

punishment.” Hayes v. State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002). Brady applies only in

situations where the information was known to the prosecutor but unknown to the defense. Id. at

815. In this case, Bell’s attorney referred to Scott and his testimony in her opening statement to

the jury. Accordingly, Brady would not apply because the information about which Bell now

complains was known to the defense. Moreover, in order to prevail on a Brady claim, Bell must

show: (1) the State failed to disclose evidence; (2) the withheld evidence is favorable to Bell; 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.” Ex parte Richardson, 70 S.W.3d

865, 870 (Tex. Crim. App. 2002). In this case, the trial court determined Scott’s testimony was

generally consistent with the testimony of the other witnesses, and the record reasonably supports

that finding. Because Scott’s testimony was generally consistent with the other witnesses, the trial

court did not abuse its discretion in determining no reasonable probability exists that the outcome

of the trial would have been different if the evidence had been disclosed. See id.




1
    373 U.S. 83 (1963).

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Shifting of Burden of Proof

        Bell also contends the trial court erred in denying his motion for new trial because the jury

shifted the burden of proof to him to prove his innocence. In support of this claim, Bell refers to

the affidavit of his defense counsel which was attached to his motion for new trial. In the affidavit,

his defense counsel stated she interviewed the jury members after the verdict was reached, and one

of the jurors stated the jury was waiting for the defense team to put on evidence. Other jury

members shook their head in agreement.

        Defense counsel, however, did not introduce the affidavit into evidence at the hearing on

the motion for new trial. Therefore, we do not consider the affidavit as evidence because it was

not before the trial court. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009); Rodriguez

v. State, 336 S.W.3d 294, 301 n.3 (Tex. App.—San Antonio 2010, pet. denied). Accordingly, the

trial court did not abuse its discretion in denying the motion for new trial with regard to this ground.

Moreover, “[t]he trial court is free to disbelieve an affidavit, especially one unsupported by live

testimony,” and, under an abuse of discretion standard of review, we would defer to the trial court’s

evaluation of the evidence. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).

        Bell’s first three issues are overruled.

                                   ENHANCEMENT ALLEGATION

        Bell’s indictment contained an enhancement allegation alleging Bell was convicted of the

felony offense of possession of a controlled substance before the commission of the murder

offense. Bell contends the record contains no evidence to support this allegation. Having reviewed

the record, we agree with Bell that no evidence was introduced to support the enhancement

allegation.

        The State responds that the judgment recites Bell pled true to the enhancement so we must

presume Bell entered such a plea. We disagree. The presumption of regularity in proceedings
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does not apply to relieve the State of its burden to prove enhancement allegations beyond a

reasonable doubt, “especially when, as here, the State had the opportunity to introduce such proof

at the punishment hearing.” Wise v. State, 394 S.W.3d 594, 599 (Tex. App.—Dallas 2012, no

pet.). Moreover, we cannot accept the recital in the trial court’s judgment that Bell pled true to the

enhancement allegation given that the reporter’s record from the punishment hearing contains no

such plea. Id. at 599-600; Henry v. State, 331 S.W.3d 552, 555 (Tex. App.—Houston [14th Dist.]

2011, no pet.).

       The State further responds that the trial court sentenced Bell within the range of punishment

for a non-enhanced first degree felony; therefore, the absence of evidence to support the

enhancement allegation is harmless. Because the State failed to meet its burden of proving the

enhancement allegation beyond a reasonable doubt, “there is no way to quantify what impact the

unsupported finding of true had on the [trial court’s] normative sentencing function.” Jordan v.

State, 256 S.W.3d 286, 293 (Tex. Crim. App. 2008). “Accordingly, any attempt to calculate how

the [trial court] exercised its normative function in assessing [Bell’s] sentence would necessarily

entail pure speculation.” Id. “Under these circumstances, the State’s failure to meet its burden of

proof, even if subjected to a harm analysis, can never be deemed harmless.” Id.

       Because the record contains no evidence to support the enhancement allegation, we sustain

Bell’s fourth issue.

                               CRUEL AND UNUSUAL PUNISHMENT

       In his final issue, Bell contends his sentence constituted cruel and unusual punishment.

The record, however, does not contain any objection made by Bell at trial with regard to his

sentence, and Bell did not raise this complaint in his motion for new trial. Therefore, this issue is

not preserved for our review. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996);

Battle v. State, 348 S.W.3d 29, 30-31 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
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                                          CONCLUSION

       The judgment of conviction is affirmed. Because the State failed to prove the enhancement

allegation beyond a reasonable doubt, the portion of the trial court’s judgment imposing sentence

is reversed, and the cause is remanded to the trial court for a new punishment hearing.

                                                 Luz Elena D. Chapa, Justice

Do Not Publish




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