                                 NO. 07-04-0090-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL D

                              SEPTEMBER 26, 2006
                        ______________________________

                          AMADOR SALAZAR, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE
                      _________________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2002-400255; HONORABLE JIM BOB DARNELL, JUDGE
                      _______________________________


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


                                      OPINION


      Amador Salazar presents seven issues challenging his conviction for aggravated

assault and punishment of fifty years confinement. His issues complain of the State’s

failure to disclose exculpatory information, the admission of evidence of an extraneous

offense and the exclusion of evidence impeaching a prosecution witness. We affirm.


      The events leading to appellant’s prosecution occurred at a bar in Lubbock, where

appellant and the victim, Raul “Roy” Lopez, were among about a dozen patrons that

evening. The two had known each other for nearly ten years. They were the only
witnesses to the assault who testified at trial. Neither reported having any history of

disputes with the other but gave very different accounts of what happened.


       Lopez testified he had consumed one beer and a line of cocaine at the bar earlier

in the evening. He returned to play in a pool tournament and greeted appellant and others

he knew. Lopez was drinking water at the bar and talking to Sally Regalado when

appellant approached on the other side of Regalado and told Lopez he wanted to speak

to Lopez outside. Lopez replied they had nothing to talk about. When Lopez backed away

and turned, appellant stabbed Lopez in the stomach with a 4 to 5 inch knife.


       Appellant’s version of events had Lopez present in the bar when he arrived.

Appellant first went to the bar’s small restroom, and was there when Lopez tried to enter

it. According to appellant, when he left the restroom it was Lopez who said “I want to talk

to you,” to which appellant replied “Okay, I don’t want to talk to you.” While appellant sat

at a table with friends, Lopez was at the bar saying “what is up?” which appellant took as

“threatening or menacing.” He also testified Lopez was playing pool with Roy Olivarez and

approached his table several times while carrying a pool cue. Because of this conduct and

the presence of Olivarez, who appellant asserted had stabbed him (apparently in the same

bar) seven years earlier, appellant decided to leave. As he was heading for the door,

Lopez said “where are you going?” and approached appellant with a pool cue. Fearing he

would be struck with the cue, appellant stabbed Lopez and left.


       The uncontroverted evidence showed Lopez required surgery to correct perforations

in his intestine which the treating doctor testified were life-threatening injuries. Additional


                                              2
facts will be discussed in connection with appellant’s individual issues. The jury rejected

appellant’s claim of self defense and found him guilty of aggravated assault. Before

assessing punishment, the trial court found true the enhancement allegations of the

indictment.


       All of appellant’s issues relate to the extraneous offense testimony of prosecution

witness Tom Aleman. Appellant’s first issue asserts the State violated his due process

rights by failing to disclose information relevant to impeachment of Aleman. He relies on

the U.S. Supreme Court’s recognition of a constitutional right to have the government

disclose evidence in its possession which is material and exculpatory. Brady v. Maryland,

373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also Harm v. State, 183

S.W.3d 403, 406 (Tex.Crim.App. 2006).          The rule adopted in Brady encompasses

impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87

L.Ed.2d 481 (1985). To demonstrate reversible error for violation of Brady rights, a

defendant must show (1) the State failed to disclose evidence, regardless of the

prosecutor's good or bad faith; (2) the withheld evidence is favorable to the defendant; and

(3) the withheld 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. Harm, 183

S.W.3d at 406. With respect to the materiality element, our evaluation of the undisclosed

evidence must consider the entire record. See Hampton v. State, 86 S. W.3d 603, 612

(Tex.Crim.App. 2002). The mere possibility the information might have affected the trial's

outcome does not make it material in the constitutional sense. Id. (citing U.S. v. Agurs,

427 U.S. 97, 109, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The proper inquiry is whether


                                              3
the failure of its disclosure undermines confidence in the jury's verdict. See Ex parte

Richardson, 70 S.W.3d 865, 870 n.22 (Tex.Crim.App. 2002); Ex parte Adams, 768 S.W.2d

281, 290-91 (Tex.Crim.App. 1989).


       Aleman testified over appellant’s objection that appellant cut him with a knife at

another Lubbock bar several months after the incident for which appellant was being tried.

Aleman’s criminal history included two arrests for assault in Lubbock. During trial, outside

the presence of the jury, a disagreement arose between the prosecutor and defense

counsel over whether Aleman’s criminal history had been provided to the defense. The

prosecution asserted Aleman’s criminal history records had been made available with

those of other prosecution witnesses through the district attorney’s open file policy.

Defense counsel represented to the court he had reviewed the files made available to him,

and Aleman’s criminal history was not among those in the file. After examining the

prosecution’s criminal history file, the trial court found no violation of Brady’s disclosure

requirements.


       On appeal, appellant argues the State violated Brady and his due process rights by

failing to disclose the arrests for assault.1 We initially note a defendant’s ability to review

the prosecutor’s case file under an open file policy typically satisfies the requirements

under Brady as to information contained in the file. Harm, 183 S.W.3d at 407. Appellant’s

argument incorrectly assumes his trial counsel’s representation that Aleman’s criminal

history information was not in the prosecutor’s file establishes the first element of a Brady


       1
         The record reflects these charges arose from incidents of domestic violence
involving Aleman’s wife.

                                              4
violation. The prosecutor represented the information had been in the file when examined

by defense counsel. The trial court accepted defense counsel’s invitation to examine the

file during trial. That examination showed the information was then present. The trial court

simply was presented with a factual dispute concerning the contents of the State’s file.

Appellant offers no authority suggesting resolution of this factual dispute was not within the

province of the trial court. See Gantt v. Roe, 389 F.3d 908, 916 (9th Cir. 2004) (remanding

for trial court resolution of dispute on whether information was disclosed.) The record

supports the trial court’s implicit resolution of that dispute in favor of the State. Appellant

has failed to satisfy the first element required to establish a violation of Brady.


       The record also fails to show the information was material, meaning the failure to

disclose it undermines confidence in the jury’s verdict. Richardson, 70 S.W.3d at 870 n.22.

Appellant argues the evidence of Aleman’s assault arrests would have supported his claim

that Aleman was the first aggressor in their confrontation.2 In that regard, however,

appellant’s own testimony concerning the stabbing of Aleman did not reveal meaningful

conflict with Aleman’s testimony. Appellant did not testify Aleman attacked him, only that

they were arguing and he thought Aleman could have been preparing to attack him. When

asked why he stabbed Aleman, appellant testified they had argued and “[w]hen he picked

up the [beer] bottle, I didn’t know whether he was going to swing the bottle at me or take



       2
         Appellant’s argument seems to rely on Rule of Evidence 404(a)(2), which, by its
terms, concerns evidence of the character of the victim of the offense being tried. See,
e.g., Tate v. State, 981 S.W.2d 189, 193 (Tex.Crim.App. 1998) (applying rule). Appellant
does not address, and we express no opinion on, the applicability of that rule to evidence
of the character of a witness testifying to an extraneous act, which would seem to be
governed by Rule 404(a)(3). Tex. R. Evid. 404(a)(2), (3).

                                              5
a drink. He just picked it up, and he was arguing, and he was mad.” Whether the jury

accepted Aleman’s testimony or appellant’s, appellant’s inability to impeach Aleman with

evidence of his arrests for domestic violence assaults do not undermine confidence in the

jury’s verdict. We overrule appellant’s first issue.


       Appellant’s second, third, and fourth issues concern the admission of evidence that

he cut Aleman. He argues the evidence was inadmissible under Rules of Evidence 401

and 404(b) (issue two), the prejudicial effect substantially outweighed its probative value

making it inadmissible under Rule 403 (issue three), and the trial court erred in failing to

issue a timely limiting instruction (issue four).


       To ensure defendants are tried only for the crime with which they are charged and

not for criminal propensity, evidence of extraneous offenses is normally inadmissible.

Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). This protection is reflected

in the provision of Rule of Evidence 404(b) that evidence of other crimes is not admissible

“to prove the character of a person in order to show action in conformity therewith.” The

evidence may be admissible for other purposes. Rankin v. State, 974 S.W.2d 707, 718

(Tex.Crim.App. 1996). Rule 404(b) specifically lists motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident as permissible purposes. This

list is not exhaustive. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1991)

(op. on rehearing). When an objection is made to evidence of an extraneous offense, the

proponent must satisfy the trial court the evidence is relevant apart from its tendency to

show character or conformity with character. Id. at 387. A trial court has broad discretion



                                               6
in determining the admissibility of evidence and its decision will not be disturbed absent a

showing that discretion was abused. Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App.

1999); Rankin, 974 S.W.2d at 718 (application to admission of extraneous offense

evidence).


       The jury charge contained instructions on self-defense. The defense raised the

issue of Lopez’s aggression toward appellant during cross-examination of prosecution

witnesses, and presented expert testimony on the effects of the use of alcohol and

cocaine, with focus on the impact of the substances on the user’s aggressiveness.3 The

State contends the extraneous offense evidence was admissible because it was offered

to controvert appellant’s self-defense theory and to show his intent. Under appellant’s self

defense theory his intent in stabbing Lopez was to defend himself.4 The State’s theory was

that appellant was the aggressor and his intent was not defensive. The evidence of

appellant’s use of a knife on Aleman in similar circumstances was relevant to evaluation

of appellant’s claim of self defense in the stabbing of Lopez. See Halliburton v. State, 528

S.W.2d 216, 218 (Tex.Crim.App. 1975) (evidence of extraneous shooting admissible to

refute claim of self defense); Lemmons v. State, 75 S.W.3d 513, 523 (Tex.App.--San

Antonio 2002, pet. ref’d) (evidence defendant was aggressor in other incidents admissible

when self-defense is raised); Yarbrough v. State, 753 S.W.2d 489, 490 (Tex.App.--


       3
        Because of the expert’s schedule, she was allowed to testify out of order, before
the State finished its case in chief and before Aleman’s testimony.
       4
         Under the court’s charge and the Penal Code, consideration of appellant’s
assertion he acted in self defense required the jury to evaluate whether he reasonably
believed his conduct was immediately necessary to protect himself against the use of
force. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003).

                                             7
Beaumont 1988, no pet.) (State entitled to refute defendant’s claim of self defense by

attempting to show he acted as aggressor in previous knifings). We overrule appellant’s

second issue.


      Appellant’s third issue assigns error to admission of the extraneous offense

evidence on the basis it should have been excluded because the probative value was

substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. The

trial court expressly found the evidence was not subject to exclusion on the grounds set

out in Rule 403. In evaluating Rule 403 issues, courts begin with the presumption the

probative value is not substantially outweighed by other factors. Williams v. State, 958

S.W.2d 186, 196 (Tex.Crim.App. 1997).


      In Montgomery, the Court of Criminal Appeals identified four factors a court should

consider in performing the balancing required under Rule 403. They are:


      (1) how compellingly the extraneous offense evidence serves to make a fact
      of consequence more or less probable--a factor which is related to the
      strength of the evidence presented by the proponent to show the defendant
      in fact committed the extraneous offense;


      (2) the potential the other offense evidence has to impress the jury "in some
      irrational but nevertheless indelible way";


      (3) the time the proponent will need to develop the evidence, during which
      the jury will be distracted from consideration of the indicted offense;


      (4) the force of the proponent's need for this evidence to prove a fact of
      consequence, i.e., does the proponent have other probative evidence
      available to him to help establish this fact, and is this fact related to an issue
      in dispute.

                                              8
Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000) (citing Montgomery, 810 S.W.2d

at 389-90). Appellant acknowledges the State demonstrated a need for the extraneous

offense evidence in light of his self-defense claims, and that the evidence “appeared

strong[.]” He focuses on the third factor, arguing the State “spent a great portion of this

trial developing the evidence.” We do not agree the record supports this assertion. The

reporter’s record from the approximately two-and-one-half days of testimony is just over

600 pages. Aleman’s testimony before the jury concerning appellant’s assault on him

consumes approximately 21 pages.5 An additional 8 pages were devoted to introducing

Aleman’s hospital records and testimony of the officer who responded to that incident. No

abuse of discretion appears.        The time the prosecution devoted to developing this

evidence, either alone or in combination with the other factors identified in Montgomery,

did not present a danger of unfair prejudice, confusion of the issues, or undue delay which

substantially outweighed its probative value. Cf. Russell v. State, 113 S.W.3d 530, 546,

550 (Tex.App.--Fort Worth 2003, pet. ref’d) (twelve witnesses and nearly one-third of trial

devoted to improper extraneous offense evidence; Rule 403 challenge sustained). We

overrule appellant’s third issue.


       Appellant’s fourth issue complains of the trial court’s denial of his request to instruct

the jury on the limited purposes for which it could consider the extraneous offense

evidence at the time the evidence was admitted. The jury charge instructed the jury it

could consider the evidence only if it found beyond a reasonable doubt appellant

committed that offense and then only for determining his motive, intent, plan, scheme and


       5
           Appellant’s cross examination of Aleman consumed an additional 44 pages.

                                               9
design. The State concedes the failure to issue a contemporaneous limiting instruction

was error, see Rankin, 974 S.W.2d at 713, but argues the error was harmless. In its

opinion on rehearing in Rankin, the court noted the failure to give a timely limiting

instruction is subject to harm analysis. Id. at 720. The parties agree the error is a non-

constitutional one which we must disregard unless it affects a substantial right. See Tex.

R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d

266, 271 (Tex.Crim.App.1997); Russell, 113 S.W.3d at 549.


       Appellant’s discussion of the harm resulting from the error asserts only that it

affected his substantial right to be tried only for the crime charged and he was forced to

spend “most of his energies” defending against the extraneous offense because the “trial

became entirely about Aleman.” We do not agree. As noted, approximately ten percent

of the trial record before the jury was devoted to the extraneous offense.


       We note also that other courts evaluating harm resulting from the failure to give a

contemporaneous limiting instruction have given significant weight to the time between

admission of the extraneous offense evidence and the limiting instruction in the jury

charge. See Jones v. State, 119 S.W.3d 412, 424 (Tex.App.--Fort Worth 2003, no pet.);

Lemmons, 75 S.W.3d at 525. Here the three witnesses who testified to the extraneous

offense were the State’s last three witnesses. In Jones, the court also considered the fact,

present here, that the extraneous offense was no more serious than the charged offense.




                                            10
119 S.W.3d at 425. Considering the record as a whole, we conclude the error did not have

a substantial effect on the jury. We overrule appellant’s fourth issue.


       Appellant’s next group of issues challenges the exclusion of evidence of probation

violations reflected in the probation file of Tony Aleman. Appellant sought to introduce

evidence that Aleman had consumed alcohol and failed to complete treatment programs,

in violation of the terms of his probation. The trial court sustained the State’s objection to

evidence of events not connected to May 17, 2003, the date of appellant’s assault on

Aleman. Appellant’s specific complaints are that the trial court’s exclusion of the evidence

was error because it was relevant (issue 5), the ruling denied his right to a fair trial and due

process (issue 6), and the ruling violated his Sixth Amendment right to confront witnesses

against him (issue 7).


       Evidence that a witness called by the State is subject to a criminal charge or is on

probation can be used to show the potential bias or interest of the witness in helping the

State. Maxwell v. State, 48 S.W.3d 196, 199 (Tex.Crim.App. 2001), citing Moreno v. State,

22 S.W.3d 482, 485-86 (Tex.Crim.App. 1999); Carroll v. State, 916 S.W.2d 494, 500

(Tex.Crim.App. 1996); Evans v. State, 519 S.W.2d 868, 871 (Tex.Crim.App. 1975). A

defendant’s Sixth Amendment right of confrontation encompasses the right to expose a

witness’s motivation in testifying. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d

347 (1974); Maxwell, 48 S.W.3d at 199. Here the prosecution brought out on direct

examination Aleman’s probationary status and the existence of his agreement with the

State regarding his testimony. The defense was allowed to question Aleman about his



                                              11
agreement with the State and about some violations of his probation reflected in the

probation file.


       The record reflects considerable discussion, outside the presence of the jury, about

the terms of the State’s agreement with Aleman. Eventually, the prosecution and appellant

agreed to a stipulation concerning the agreement and other aspects of Aleman’s testimony.

Pursuant to the stipulation, the jury was advised that “any violations of Mr. Aleman’s

probation that he admitted to concerning the events of May the 17th of 2003 or any violation

that he admitted to on the witness stand will not be used as a violation of his probation, per

the agreement with the District Attorney’s Office.”


       The excluded evidence consisted of five pages taken from Aleman’s probation file.

Offering the exhibits, appellant’s counsel described the probation violations reflected on

each page, and concluded, “Of course, all of that is covered by their deal, and none can

be used to revoke him. And our position would have been that is legitimate cross-

examination evidence. We are entitled to go into the extent of the deal, the whole deal.

And the jury may have ascribed more or less weight had they known about it all, so we

wanted to offer that.”


       Examination of the offered pages from Aleman’s probation file reveals that none of

the probation violations referred to in those pages occurred on May 17, 2003. Nor were

any of the violations revealed to the State through his testimony. The trial court reasonably

could have concluded that the evidence contained in the offered pages from Aleman’s

probation file were not relevant to his agreement with the State, and were not necessary


                                             12
to the jury’s understanding of “the whole deal” between them. Appellant’s fifth issue is

overruled. We accordingly conclude also that exclusion of the offered pages did not

encroach on appellant’s constitutional right of confrontation, and overrule appellant’s

seventh issue.


      Appellant’s brief does not present a discrete argument addressing his sixth issue.

That issue presents nothing for review and is overruled. Rocha v. State, 16 S.W.3d 1, 20

(Tex.Crim.App. 2000).


      Finding no reversible error, we affirm the judgment of the trial court.




                                                James T. Campbell
                                                    Justice




Publish.




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