
                              NO. 07-10-0072-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL D

                              NOVEMBER 22, 2010




                            ELISEO RENE ZAMBRANO,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

                FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

            NO. B18071-0906; HONORABLE EDWARD LEE SELF, PRESIDING



                             Memorandum Opinion



Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
      Eliseo Rene Zambrano challenges his conviction of assault on his  wife
or girlfriend by contending the State violated his constitutional rights  in
failing to provide him with exculpatory evidence  and  by  the  trial  court
denying his motion  for  new  trial  on  the  same  basis.   We  affirm  the
judgment.
      Prior to trial, Kathy Cervantes, the mother of  appellant's  children,
signed an affidavit of non-prosecution.  In that affidavit, she stated:

            I do not wish to prosecute or go through with the charges of  my
      husband  Eliseo  Zambrano.   I  do  not  want  to  prosecute   because
      everything  that  happened  that  day  was  misunderstood,  and  I  am
      struggling without him being in jail and me and espicially [sic] his 3
      young  daughter  [sic]  need  him  physical  [sic],  emotionally   and
      financially and we need him w/us and everything that has happened  was
      a mistake and a mistake for pressing charges.


The State concedes that this affidavit was not furnished to appellant  prior
to trial because it could not be located  even  though  appellant's  counsel
inquired about it  multiple  times.   The  affidavit  was  not  found  until
appellant had filed a motion for new trial.  Appellant argues he was  denied
his right to due process and his right of confrontation (i.e.  an  effective
cross-examination) by the State failing to furnish the affidavit.
       The State has a duty to turn over material, exculpatory  evidence  to
the accused.  Brady v. Maryland, 373 U.S. 83, 87, 83  S.Ct.  1194,  1196-97,
10 L.Ed.2d 215 (1963).  Due process is violated if the State fails to do  so
regardless of whether bad faith on  the  part  of  the  State  is  involved.
Wyatt v. State, 23 S.W.3d 18,  27  (Tex.  Crim.  App.  2000).   Evidence  is
material if there is a reasonable probability that, had it  been  disclosed,
the outcome would have been different, and the defendant  bears  the  burden
of proving the same.  Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.  App.
2002).  The mere possibility that an item of information might  have  helped
the  defense  or  might  have  affected  the  outcome  does  not   establish
materiality in the constitutional sense.  Id.  The  proper  inquiry  for  an
appellate  court  is  whether  the  failure  to  disclose  the   information
undermines confidence in the jury's verdict.  See Ex  parte  Richardson,  70
S.W.3d 865, 870 n.22 (Tex. Crim. App. 2002).
      Cervantes testified during the guilt/innocence phase that 1) she tried
to avoid testifying because she "didn't want to come and .  .  .  deal  with
this whole situation," 2) she loves appellant, 3) the fight was over  a  set
of car keys and they were pushing each other, and 4) appellant  punched  her
in the face six times.  During the punishment phase, she stated 1)  she  had
filed an affidavit of non-prosecution, 2) she did not want to get  appellant
in trouble, 3) she needs appellant to help  support  her  children,  and  4)
even though she is afraid that her daughters are going to choose to be  with
abusive men, she still wants appellant in her life.  Thus, some of what  was
contained in the affidavit was before the jury.
      There is also evidence that appellant's counsel knew  prior  to  trial
that Cervantes  had  executed  an  affidavit  of  non-prosecution  since  he
requested it from the State and  he  specifically  asked  that  question  of
Cervantes during the punishment phase.  A defendant fails to establish  that
there is a reasonable probability that the result would have been  different
when he had actual knowledge of  the  information.   Ex  parte  Chavez,  213
S.W.3d 320, 325 (Tex. Crim. App. 2006) (there is no  due  process  violation
when the defendant himself already knew of the  exculpatory  facts);  Peters
v. State, 997 S.W.2d 377, 386-87 (Tex. App.-Beaumont  1999,  no  pet.)  (the
defendant failed to show a different result would  have  occurred  when  the
defense had actual knowledge prior to trial that  the  victim  had  recanted
her testimony).
      Appellant argues that the trial court erred in denying his motion  for
new trial because the evidence that the incident  was  a  "misunderstanding"
is  exculpatory  in  contrast  to  the  State's  allegation  that  he  acted
intentionally, knowingly, or recklessly.  Appellant's counsel also  provided
testimony at the new trial hearing that, had he known the  contents  of  the
affidavit  of  non-prosecution,   he   would   have   questioned   Cervantes
"specifically about her claims that 'everything that happened that  day  was
misunderstood' and 'everything that has  happened  was  a  mistake.'"    The
statement that there was a misunderstanding is unclear as to  whether  there
was a  misunderstanding between Cervantes and appellant or between  her  and
the police officers.  The statement that there was a mistake is  unclear  as
to whether appellant did not assault Cervantes,  appellant  made  a  mistake
when he assaulted her, or Cervantes made a mistake in pressing charges  even
if appellant did  assault  her.   Moreover,  appellant  apparently  did  not
question Cervantes prior to trial and did not  question  her   during  trial
about the contents of  her  affidavit  even  though  he  knew  or  at  least
believed that one existed.  Due to the  ambiguity  and  vagueness  of  these
statements, we cannot say that  the  lack  of  their  disclosure  undermines
confidence in the verdict.
      Accordingly, we overrule appellant's issues and affirm the judgment.


                                        Per Curiam


Do not publish.

Concurring opinion by Pirtle, J.







