Pitman v. State

• Decision Date: 21 June 2012
• Docket Number: No. 02–10–00499–CR.,02–10–00499–CR.
• Citation: 372 S.W.3d 261
• Parties: Jerry Lee PITMAN, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

372 S.W.3d 261

Jerry Lee PITMAN, Appellant,

v.The STATE of Texas, State.

No. 02–10–00499–CR.

Court of Appeals of Texas, Fort Worth.

June 21, 2012.

Julia Bella, Assistant Public Defender, James A. Rasmussen, Chief Public Defender, Wichita Falls, TX, for Appellant.

Maureen Shelton, Criminal Dist. Atty., John R. Gillespie, First Asst. Crim. Dist. Atty., John W. Brasher, Asst. Crim. Dist. Attorney, Wichita County, for State

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant Jerry Lee Pitman pleaded guilty to two counts of aggravated sexual assault without an agreed punishment recommendation. The trial court sentenced Appellant to two consecutive life sentences. In three related issues, Appellant asserts that the trial court abused its discretion by denying his motion for new trial, in which he alleged that the State's failure to disclose documents prior to his guilty plea and punishment hearing violated his due process and due course of law rights.¹ Appellant specifically argues that the State violated the dictates of Brady v. Maryland by failing to disclose 3,000 pages of Child Protective Services (CPS) records containing among other documents notes from the complainant's therapy sessions that were inconsistent with the complainant's and the therapist's trial testimony. ²See373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm.

APPLICABLE LAW

In Brady v. Maryland, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196–97;see Pena v. State, 353 S.W.3d 797, 809 (Tex.Crim.App.2011). The court of criminal appeals has held that to find reversible error under Brady, an appellant must show that (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the undisclosed evidence constitutes exculpatory or impeachment evidence that is favorable to him, that is, if disclosed and used effectively, the evidence may make a difference between conviction and acquittal; and (3) the evidence is material, that is, it presents a reasonable probability that had the evidence been disclosed, the outcome of the proceeding would have been different. Pena, 353 S.W.3d at 809, 812;Harm v. State, 183 S.W.3d 403, 406, 408 (Tex.Crim.App.2006). We analyze an alleged Brady violation “in light of all the other evidence adduced at trial.” Hampton v. State, 86 S.W.3d 603, 612–13 (Tex.Crim.App.2002).

We review a trial court's ruling on a motion for new trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007); Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App.2006). We view the evidence in the light most favorable to the trial court's ruling and uphold it if it was within the zone of reasonable disagreement. Webb, 232 S.W.3d at 112. We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Id.;Holden, 201 S.W.3d at 763.

PROCEDURAL AND FACTUAL BACKGROUND

In 2009, the State charged Appellant with sexually assaulting S.P., a child younger than fourteen years of age, on two occasions in 2008. On August 9, 2010, Appellant waived a jury trial and pleaded guilty to the two counts without a recommendation on punishment. Following Appellant's plea, the prosecutor advised that,

initially during her disclosures the victim only disclosed two incidents of aggravated sexual assault, and that's why the indictment has two counts. However, I spoke with the victim last Monday and she disclosed sexual misconduct on the part of [Appellant] from age nine to age twelve, and I immediately picked up the phone to call [defense counsel] who wasn't available at the time, but I did send him an e-mail just to satisfy my Brady duties.

Appellant acknowledged receiving the email. The trial court stated that he would grant Appellant a recess before his cross-examination of S.P. if he needed one.

The next day, the State presented evidence that twelve-year-old S.P. delivered a baby boy at a local hospital in May 2009. After initially claiming she did not know who the baby's father was, S.P. reluctantly told a nurse that the baby's father was her stepfather, Appellant. The nurse contacted CPS, and subsequent DNA testing confirmed that Appellant was the baby's father.

CPS Investigator Kathy Meyer testified that she met with S.P. at the hospital after the baby's birth and that S.P. described in detail—once to Meyer and once to Meyer and Detective Alan Killingsworth—how Appellant had sexual intercourse with her two times between June and September 2008 at their home, where they lived with S.P.'s four half-siblings and Appellant's parents and brother.

Ashlee Bowles testified that she was a CPS caseworker for this family and that she met with Appellant in April 2010 while he was incarcerated. Appellant told Bowles that he was “cracked out” when the abuse occurred and that it never would have happened “at least six times” if he had been sober.

The next day, Appellant objected to any testimony by S.P. regarding any sexual abuse not alleged in the two-count indictment, asserting that he had requested notice of extraneous offenses a year earlier (which the State disputed). The prosecutor reiterated that she had not been aware of the additional sexual abuse until the Monday before, when S.P. told her. The prosecutor explained that she had called Appellant's counsel that same day, and upon learning that he would be out of the office for a few days, she sent him an email. Defense counsel, having previously acknowledged receiving the email, stated that he did not think the State had acted in bad faith but that “the purpose of the notice is to allow us to prepare” and that “if we know simply that there's sexual abuse and don't know anything else, I don't know how we can prepare.” The trial court ruled that, in light of caseworker Bowles's unobjected-to testimony that Appellant had admitted to six incidents of abuse, he would allow S.P. to testify to six incidents and that he would grant Appellant a continuance before cross-examination if requested.³

S.P. testified that Appellant first touched her inappropriately when she was nine years old. When the prosecutor asked about other instances, S.P. responded, “Well, I know that it happened almost all the time.” S.P. then testified that Appellant first had sexual intercourse with her when she was eleven years old. S.P. described the incident and explained that she was shocked the first time but that as she got older she “just g[o]t used to it.” S.P. testified that a CPS caseworker came to their house in 2008 (in response to a referral of five children living in a dilapidated house) and that the caseworker told Appellant to stop sleeping in the same bed as S.P. In response, Appellant began picking up S.P. from school early and having intercourse with her in her grandmother's bed when no one was home but an uncle. S.P. testified that Appellant “put his penis inside [her] privates” the same summer that she became pregnant and that the last time was one week before the baby was born. The prosecutor then elicited testimony from S.P. that she told “the CPS person” that it only happened twice because she was scared, because she did not want anything bad to happen to her stepfather, and because she did not want her brothers and sisters to get hurt and hate her.

On cross-examination, Appellant elicited from S.P. that she gave a November 2009 videotaped interview and that she did not tell the CPS interviewer about the other sexual abuse incidents about which she had testified. When Appellant tried to introduce the DVD as impeachment evidence, however, the State objected that he had not laid the proper predicate, and the trial court agreed. Appellant then elicited testimony from S.P that she told both Kathy Meyer and Detective Killingsworth at the hospital that the sexual abuse happened on only two occasions. He also elicited the following testimony:

[Defense Counsel]: Q. And so then you—you went ahead and told them at that time that you were telling the truth; is that right?

[S.P.] A. Yes, sir.

Q. But today you're saying that that really wasn't the truth; is that right?

A. Sir, it was the truth. But honestly, I didn't want to tell everything because I don't like to get people in trouble.

....

Q. [Y]ou later had a chance to talk to CPS and did talk to CPS. Right?

A. Yes, sir.

Q. And you never explained any of this to them at that point in time, did you?

A. No, sir.

When S.P. finished testifying, Appellant's counsel asked for a short recess but stated,“I don't contemplate asking—I don't want a continuance, I want to get it done, but I don't want to—.”

When the hearing resumed, Laura Greuner testified that she was a licensed clinical social worker and S.P.'s therapist. Greuner testified that she diagnosed S.P. with Post–Traumatic Stress Disorder (PTSD) and explained that PTSD “is an anxiety disorder that people get when they go through serious traumas where [either their] life is threatened or the integrity of their body is threatened. And that's how sexual abuse comes into it.” Greuner testified that S.P. exhibited signs that were consistent with sexual abuse, such as anxiety and nightmares. Greuner testified that S.P. will have issues associated with her stepfather's sexual abuse for the rest of her life. On cross-examination, Appellant's counsel elicited testimony from Greuner that S.P. would be able to “have times when she enjoys a normal life just like she does now.”

In his case in chief, Appellant presented evidence that he had an IQ of 77, placing him in the borderline range of intellectual functioning; that he could be a productive citizen if provided structure and supervision;...