Swinnie v. State, No. 05-08-01076-CR (Tex. App. 7/10/2009)
| Decision Date | 10 July 2009 |
| Docket Number | No. 05-08-01076-CR.,05-08-01076-CR. |
| Parties | TONY WAYNE SWINNIE, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-00180-T.
AFFIRM.
Before Justices FITZGERALD, LANG, and LAGARDE.
1
Tony Wayne Swinnie was convicted of aggravated robbery and sentenced to life in prison. In five issues, he complains about an alleged Brady violation,2 double jeopardy, denial of his motion for mistrial, admission of a surveillance video from the night of the robbery, and denial of a motion to suppress appellant's recorded statement. We affirm the trial court's judgment.
On the night of July 24, 2006, Wayne Moore, a retired teacher and athletic coach, stopped at a McDonald's in Grand Prairie, Texas, on his way home from a Texas Rangers baseball game, where he had been working as a part-time usher. It was close to closing time and Moore was the only customer inside the McDonald's. As he looked over the menu and waited for an employee to take his order, Moore noticed appellant walk into the McDonald's and stand at the counter next to him. The surveillance video from the McDonald's3 shows that as soon as an employee walked up to the counter to take their orders, appellant struck Moore in the head, knocking him unconscious and causing him to fall to the ground.4 Appellant then quickly rifled Moore's pockets and fled the restaurant. In a videotaped statement to the Grand Prairie police,5 appellant admitted committing the robbery and stated he was the person seen on the McDonald's surveillance video.
Appellant pleaded not guilty to, and was convicted of, aggravated robbery of a person over the age of sixty-five. On June 27, 2008, the jury found the two enhancement paragraphs true and sentenced appellant to life imprisonment. The court ordered that this sentence not commence until appellant was discharged from an aggravated robbery sentence imposed on March 21, 2007, cause number 2006-1391-CI, in the 19th judicial district court of McLennan County, Texas.
In his first issue, appellant claims the trial court abused its discretion by failing to declare a mistrial when confronted with a Brady violation, that is, after the State disclosed that one of its witnesses picked a man other than appellant out of a photographic lineup.
During direct testimony, Rosalina Espino, the McDonald's employee who witnessed the aggravated robbery, was asked by the prosecutor if, prior to trial, she had been shown a photographic lineup. Espino replied that she was shown a photographic lineup and selected a person other than appellant as the robber. The trial court then excused the jury and held a hearing concerning the photographic lineup. During that hearing, Espino was shown copies of the lineup and said she had picked someone other than appellant out of the lineup. The detective told her, She was told to look again at the lineup "and try to pick him out." Espino could not remember whether she had talked to the prosecutor about the photographic lineup. Joe Wood, a detective with the Grand Prairie Police Department, testified he showed the photographic lineup to Espino and that neither she nor the other witness could pick appellant out of the lineup. Wood could not remember whether Espino selected someone other than appellant as the robber. He testified he never told witnesses they did not select the correct person and it was not his "normal practice to tell somebody that they picked the wrong person." Wood also testified that if someone selected the wrong person, he did not document the misidentification.
Defense counsel noted the trial court granted his request for Brady material. He also argued he had not been shown the misidentification evidence, which he claimed was exculpatory. Defense counsel argued he needed time to investigate the original photographic lineup and identify the person or persons who were actually identified by Espino.
Shortly thereafter, Espino was recalled to the stand and shown another copy of the lineup. She said she could not recall who she had previously identified. The trial court then made the following findings:
[I]t is more likely that Ms. Espino did pick the wrong person and that that was not recorded by the police, as she does have independent recollection and she has probably only been subject to this lineup, and the officer does not recall and has probably performed many lineups.
The Court also notes that this lineup was poorly performed. The Court believes that misidentification may have occurred, that this information was not recorded, not provided to the district attorney's office. That if there was any violation of Brady, it started and ended with this detective's activity.
However, I do not believe that a continuance is warranted at this time because there is no way to know who was picked out of the lineup and, therefore, your request is denied.
Appellant later moved for a mistrial on the basis of the Brady violation. The trial court denied the request.
The trial resumed. During a subsequent break in the proceedings, the trial court ordered the prosecutor The court also stated:
I am holding that the fact that she picked out the wrong person in this case, where a lineup was not the basis of the development of [appellant], where he was—the evidence, at this time my understanding, will be the video and the confession, and I'm holding that the misidentification at this time is not material.
However, should you develop evidence and wish to present it to the Court within the time lines of the rules of appellate procedure in the form of a motion for new trial or if you should be able to develop it before the end of this trial, I will grant you an opportunity to create a record and establish any materiality at that time.
An appellate court reviewing a trial court's ruling on a motion for mistrial must utilize an abuse of discretion standard of review, Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), and must uphold the trial court's ruling if that ruling was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g); Wead v. State, 129 S.W.3d 126, 128 (Tex. Crim. App. 2004).
Under Brady, an appellant shows reversible error if (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and (3) the 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. Brady v. Maryland, 373 U.S. 83, 87 (1963); Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. U.S. v. Bagley, 473 U.S. 667, 682 (1985). The mere probability that undisclosed evidence may have helped the defense or affected the trial's outcome does not establish materiality in the constitutional sense. Hampton, 86 S.W.3d at 612. Further, whether the evidence is material should be viewed in the context of the overall strength of the State's case. Id. at 613.
In this case, appellant's identity as the robber was not in dispute. The surveillance video of the robbery was shown to the jury and appellant's videotaped confession, which was also shown to the jury, admitted that he was the man in the video. As such, we cannot conclude that, had the State disclosed, prior to trial, the fact that Espino identified someone other than appellant in a pretrial photographic lineup, a "reasonable probability" existed that the outcome of the trial would have been different. Bagley, 473 U.S. at 682. Moreover, the trial court told appellant that if he discovered evidence that would make the photographic lineup material to his case, he could present that evidence to the court. Yet appellant did not make any subsequent offers of evidence regarding the materiality of the lineup to this case. We also note appellant was able to present evidence to the jury via cross-examination of Espino that she had, in fact, identified someone other than appellant in a pretrial photographic lineup. We conclude appellant presents nothing more than the mere probability that the undisclosed evidence may have helped the defense or affected the trial's outcome, and this alone does not establish materiality in the constitutional sense. Hampton, 86 S.W.3d at 612. Accordingly, the trial court did not abuse its discretion. We resolve appellant's first issue against him.
In his second issue, appellant claims the trial court erred by denying his plea in bar asserting his prosecution was barred on double jeopardy grounds.
Several months before trial, appellant's trial counsel filed a plea in bar arguing he was subjected to double jeopardy when this offense was prosecuted because the trial court in McLennan County heard evidence regarding the then-unadjudicated instant offense and considered it in assessing a life sentence.
A hearing on appellant's plea in bar was held on June 23, 2008. During the hearing, Marshall McCallum, a Dallas County assistant district attorney (ADA) assigned to the trial court, testified that in March 2007 he became aware the McLennan County District Attorney (DA) was prosecuting a case against appellant and they would "try their case first." McCallum "assumed," but did not know, that the McLennan...
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