

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.
                                                                                                 
       
            
              
 




 

