Morris v. State

• Citation: 530 S.W.3d 286
• Decision Date: 24 August 2017
• Docket Number: NO. 01-16-00330-CR,01-16-00330-CR
• Parties: Derrick MORRIS, Appellant v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas

530 S.W.3d 286

Derrick MORRIS, Appellant

v.The STATE of Texas, Appellee

NO. 01-16-00330-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued August 24, 2017

Discretionary Review Refused January 10, 2018

Joseph W. Varela, 2500 East T.C. Jester Blvd, Suite 247, Houston, TX 77008, for Appellant.

Kim Ogg, District Attorney, Katie Davis, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002, for Appellee.

Panel consists of Justices Jennings, Higley, and Massengale.

Michael Massengale, Justice

A jury convicted appellant Derrick Morris of assault on a family member as a second offense.¹ During the jury's deliberation on punishment, Morris moved for a mistrial, alleging that the State failed to disclose exculpatory material during the punishment phase of trial in violation of Brady v. Maryland.² The trial court denied this motion. The jury found enhancement allegations to be true and assessed a 50-year prison term as punishment.³

On appeal, Morris raises two issues, solely challenging the outcome of the punishment phase of trial. First, he contends that the trial court erred by denying his motion for a punishment mistrial because of the alleged Brady violation. Second, he argues that the trial court erred by allowing the State to call a witness solely for the purpose of impeaching her testimony.

We affirm the trial court's judgment.

Background

The complainant, S. Rose, worked as a teacher in Harris County. Although appellant Derrick Morris had a common-law marriage with another woman, Rose dated him for over two years before they ended their relationship. About three months later, Morris called Rose numerous times while she was at work. Rose left work without answering the phone calls. After leaving work, while Rose was waiting at a bus stop, Morris approached in his car and got out. He punched Rose and forced her into the car. Morris punched Rose several more times in the car, and he threatened to kill her.

Afraid for her life, Rose jumped out of the moving car and ran across an open field to a discount store. Morris followed in his vehicle, across the field, and then he chased her on foot into the store. At the store, several bystanders intervened and stopped Morris from removing Rose from the store. Morris then fled the scene before police arrived.

A grand jury indicted Morris for the offense of assault on a family member, second offense. The indictment included two enhancement paragraphs alleging that Morris previously had been convicted of aggravated assault and retaliation. After a trial on the merits, a jury convicted Morris of assault on a family member.

During the trial's punishment phase, the State called several witnesses to testify about Morris's previous felony convictions. A fingerprint expert testified that Morris's fingerprints matched those found on the judgments, including a previous conviction for assault on a family member in 2007.

Following the testimony of the fingerprint expert, the State called Morris's common-law wife, Nicole Miller, to testify about her role in the 2007 conviction for assault on a family member. Miller initially testified that an unknown assailant attacked her and that when interviewed in the hospital following the assault, she told police it was an unknown person. The State then asked if she ever told the police a different story. Defense counsel objected, contending that the State had called Miller solely for the purpose of impeaching her with a prior inconsistent statement. The trial court overruled this objection, and the State asked to designate Miller as a hostile witness. Miller testified that she had given a statement to the police alleging that Morris was the attacker. She further testified that the reason she told police that Morris attacked her was because she "was upset" and had "found out he had moved on, was happy," while she "was not." Miller affirmatively stated that Morris never attacked her.

On cross-examination, Miller testified about her relationship with Morris and how much he meant to her. She also testified that she gave a written statement to the police about the assault in 2007. On redirect examination, the State offered into evidence the written statement, dated November 13, 2007, in which Miller alleged that Morris was the person who attacked her.

In addition to Miller, the State called several other witnesses during the punishment phase. The complainant, Rose, and her mother testified about an incident that occurred after the charged offense. Morris came to Rose's apartment, kicked in the door, and threatened them with a gun. The State also called several police officers who testified about other criminal investigations involving Morris.

While the jury deliberated on punishment, Morris moved for a mistrial based on an alleged Brady violation. He argued that the State had withheld another statement written by Miller about the 2007 assault, an affidavit dated May 23, 2008, as well as a Brady notice filed in the course of the prosecution of that offense. The Brady notice disclosed that in an August 21, 2007 conversation with a police officer, Miller "insisted" that Morris "did not assault her, that she was robbed by an unknown person and wanted nothing more to do with the case." In the 2008 affidavit, Miller averred that Morris was not the person who attacked her in 2007. The affidavit included Miller's reasons why she told the police Morris had attacked her. These reasons included, among others, that she was "depressed," she "blamed him for what happened" to her, and she "wanted him to feel the same way." After a hearing, the trial court denied Morris's motion for a mistrial.

The jury found the two enhancement paragraphs to be true and assessed punishment at imprisonment for 50 years. Morris appealed.

Analysis

On appeal, Morris raises two issues challenging the punishment phase of his trial. First, he contends that the trial court erred by denying his motion for a mistrial based on the State's alleged suppression of exculpatory evidence in violation of Brady. Second, he argues that the trial court erred by admitting Miller's testimony during the punishment phase and a written statement she gave to police in which she accused Morris of attacking her in 2007.

I. Denial of mistrial for alleged suppression of exculpatory evidence

In his first issue, Morris contends that the trial court erred by denying his motion for a mistrial as to the punishment phase of trial based on an allegation that exculpatory materials were withheld by the State in violation of Brady v. Maryland.⁴

We review a trial court's ruling on a motion for a mistrial under an abuse-of-discretion standard.⁵ We "must uphold the trial court's ruling if it was within the zone of reasonable disagreement."⁶ "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required."⁷

The suppression of evidence favorable to a defendant violates his due-process rights if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution.⁸ To establish a Brady violation, a defendant must show: (1) the State suppressed evidence; (2) the suppressed evidence is favorable to the defendant; and (3) the suppressed evidence is material.⁹

The materiality prong incorporates a requirement that the defendant "must be prejudiced by the state's failure to disclose the favorable evidence."¹⁰ "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."¹¹ The strength of the suppressed evidence must be balanced against the evidence supporting the verdict.¹² Under the U.S. Supreme Court's holding in United States v. Bagley, "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome."¹³ Thus, the standard we apply "is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."¹⁴ "A ‘reasonable probability’ of a different result is accordingly shown when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.’ "¹⁵

On appeal, Morris argues that the State violated Brady by failing to disclose the affidavit in which Miller denied his involvement in the 2007 assault against her. During the punishment phase, the State called Miller to testify about an assault on her in 2007. During direct examination, Miller initially testified that she was attacked by an unknown assailant and that she so informed police afterwards. The State asked Miller if she had ever told the police anything different. She then testified that on another occasion she told the police that Morris was the person who attacked her. During her trial testimony, however, Miller maintained that Morris was not the person who attacked her. She testified that she told police Morris attacked her because she was "upset," having "found out he had moved on" and "was happy," while she "was not." She also said she had "pressure" from her family. Still, she asserted that Morris "never assaulted" her.

On cross-examination, Miller reiterated that she was "mugged or assaulted by a stranger" in 2007. She testified that she cared for Morris, her husband, and she continued to "stand by him." On redirect examination, the State introduced the November 13, 2007 written statement Miller gave to the police in which she described how Morris attacked her in 2007. On further cross-examination, Miller again testified that the statement she made about Morris attacking her in 2007 was not true, and she only wrote it because they ...