Jason Shawn-Michael Bookman v. State

Opinion issued April 5, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01145-CR

__________

JASON SHAWN-MICHAEL BOOKMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 958551

MEMORANDUM OPINION

A jury found appellant, Jason Shawn-Michael Bookman, guilty of capital

murder and assessed punishment at life in prison. (1) In 10 points of error, appellant

argues that (1) the trial court erred in striking for cause a member of the venire, (2)

the trial court erred in denying his motion to suppress his three audio-taped

statements in violation of his federal constitutional right to due process, (3) the trial

court erred in allowing extraneous offense testimony that was irrelevant and unduly

prejudicial, (4) the trial court erred in refusing to allow a jury instruction on the

lesser-included offense of manslaughter, (5) the evidence was legally and factually

insufficient to show he intended to cause the complainant's death, and (6) the trial

court erred in denying his motion for new trial based on newly-discovered evidence.

We affirm.

Background

On July 26, 2003, Joel Rivera and his friend Ryan Faircloth were leaving

Sam's Place on Richmond. As they walked to their car in the adjacent parking lot of

24-Hour Fitness, they were approached by appellant and another black man wielding

guns, one on each side of the vehicle: Faircloth by an unidentified man and Rivera

by appellant. Appellant and the unidentified man pointed guns on either side of the

car and demanded Rivera's and Faircloth's money. Faircloth testified that, after he

learned that neither Rivera nor Faircloth had more than $8 cash but that they did have

ATM cards, appellant demanded that they take him to the ATM machine. Rivera

refused to go to the ATM machine, but Faircloth offered to go in his place. Faircloth

testified that he noticed that the unidentified robber did not have a magazine in his

gun, and, at that point, Faircloth started running. Faircloth stated that he yelled for

Rivera to follow, and, when he turned around, he heard a gunshot by the other robber,

later identified as appellant. Rivera was shot and later died from his wounds.

Appellant was arrested for aggravated robbery and confessed to the shooting.

However, appellant contends that the shooting was accidental. Appellant was

charged with capital murder, and the jury was instructed on capital murder and the

lesser-included offenses of felony murder and aggravated robbery.

Strike for Cause

In point of error one, appellant contends that the trial court erred in granting

the State's strike for cause against venireman James Fry. During voir dire, Fry

expressed his reservations to considering the full range of punishment for murder:

Q. That would be a felony murder. The range of punishment is 5

years to 99 years or life. Could you consider that full range of

punishment if you found somebody guilty of committing a felony

and causing somebody's death even though it's not intentional?

A. Yeah, I could see that.

Q. Could you consider the minimum of five years even though they

caused someone's death?

A. That would be a close call.

Q. Okay. Well, I can't let you have a close call.

A. Well, it would be hard to consider that, that small a sentence on

the cost of a person's death because a life is worth a whole lot

more than that.

Q. Are you saying in a situation where someone is committing a

felony and they recklessly cause the death of someone else, that

you could not consider the minimum of five years in prison?

A. I don't believe I could.

The State:

Ms. Allen: Your Honor, I move to strike for cause.

The Court: Again, I'm taking from what you said, you can't consider it, correct?

Venireperson: Yes, sir.

The Court: Granted. Thank you for your time and service. You are

excused. Appellant contends that the State's questioning of venireman James Fry was not

shown to have an improper bias against felony murder. However, the record does not

reflect an objection from appellant to this strike.

To preserve a complaint for appellate review, a defendant must make a timely,

specific objection to the trial court. Tex. R. App. P. 33.1(a); see Wilson v. State , 71

S.W.3d 346, 349 (Tex. Crim. App. 2002). It is well-settled that, if an appellant fails

to object when a venireperson is excused for cause, he or she may not subsequently

challenge that ruling on appeal.

Purtell v. State , 761 S.W.2d 360, 365 (Tex. Crim. App. 1988).

We overrule point of error one.

Motion to Suppress

In points of error two, three, and four, appellant asserts that the trial court erred

in failing to suppress his three audio-tape-recorded in-custody statements, which were

"rendered involuntarily, in violation of [his] federal constitutional right to due

process."

Standard of Review

We review the trial court's ruling on a motion to suppress evidence for abuse

of discretion. Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a

suppression hearing, the trial court is the sole and exclusive trier of fact and judge of

the credibility of the witnesses and their testimony. Maxwell v. State , 73 S.W.3d 278,

281 (Tex. Crim. App. 2002). The appropriate standard for reviewing a trial court's

ruling on a motion to suppress is bifurcated: we defer almost totally to the trial

court's determination of historical facts and review de novo the court's application

of the law. Guzman , 955 S.W.2d at 89 .

Analysis

Appellant states that all three audio-tape recordings were rendered

involuntarily and in violation of his federal constitutional right to due process .

Specifically, appellant complains that he was "improperly intimidated by the fact that

he was being arrested for capital murder"; therefore, "it cannot be said that . . . [the]

audiotape recorded statement[s were] the product of a free will and a rational

intellect." Appellant contends that the police officers during the interrogation did not

comply with Texas Code of Criminal Procedure articles 38.22 and 38.23, making the

recordings inadmissible at trial.

At the suppression hearing, Houston Police Department Detectives Paul

Motard, Allen Brown, and Clemente Abbolandando ("Abby") testified to the

following facts:

After the detectives procured a warrant authorizing appellant's arrest, they took

him into custody for Rivera's murder, then brought him to an interview room at the

police station. Officer Abby talked with appellant during the drive, and, once they

arrived at the station, Officer Abby read appellant his article 38.22 rights from "a blue

card" as follows:

a. You have the right to remain silent and not make any statement

at all and that any statement you make may be used against you

at your trial;

b. Any statement you make may be used as evidence against you in

court;

c. You have the right to have a lawyer present to advise you prior to

and during any questioning;

d. If you are unable to employ a lawyer, you have the right to have

a lawyer appointed to advise you prior to and during any

questioning;

e. You have the right to terminate the interview at any time.

Appellant told Officer Abby that he understood the above rights and wished to waive

them. Officer Abby proceeded to conduct a "pre-interview" followed by a recorded

interview. Before the recorded interview, Officer Abby again read appellant his

rights. The State offered the recorded statement into evidence. Officer Abby left the

interview room, and Detective Brown began to interview appellant. Officer Abby

returned and continued to interrogate appellant on the record. Before beginning this

recorded session, Office Abby, for the third time, read appellant his rights. The State

offered this second recorded statement. After the second statement was made, Officer

Abby took appellant before a magistrate where he "received warnings in accordance

with the Code of Criminal Procedure." Upon returning from the magistrate, Officer

Abby began recording appellant's third statement, in which he admitted to robbing

and shooting Rivera but claimed that his gun accidentally discharged during a

struggle.

The record reflects that, prior to the third recorded statement, the following

exchange occurred:

Ofc. Abby: Knowing all of [your rights], do you waive those rights and

we'll talk about this. Is that okay?

Appellant: I don't know if it's the best thing to do, but I say we've

been doing it already, so I done already set myself up, but

it's a little late right now ain't it?

Ofc. Abby: Well, that's up to you. We can talk or we don't have to

talk, whatever you would like to do.

Appellant: Well, like I say, I guess we can continue to talk.

Ofc. Abby: You feel comfortable talking? Want anything else to

drink? Something to eat?

Appellant: No, I'm fine.

Ofc. Abby: You all right talking?

Appellant: Talking is the least of my problems right now, so I really it

ain't gonna, I don't see what, I don't know . . . .

Ofc. Abby: I mean if, if you don't want to talk, we don't have to talk.

It's up to you.

Appellant: No, I want to talk.

The trial court overruled appellant's motion to suppress and admitted all three audio-tape recordings.

Article 38.22 section 3(a) prescribes the requirements to make oral custodial

statements admissible at trial and, article 38.22 section 2 codifies the Miranda

warnings required to be given prior to custodial confessions. Tex. Code Crim.

Proc. Ann. art. 38.22 §§ 3(a), 2 (Vernon 2005); Miranda v. Arizona , 384 U.S. 436,

479 , 86 S. Ct. 1602, 1630 (1966). However, section 2 requires a fifth warning not

explicitly required under Miranda , namely that the accused "has the right to terminate

the interview at any time." Tex. Code Crim. Proc. Ann. art 38 .22, §§ 2(a), 3(a)(1),

(2). All officers testified that Officer Abby read directly from the "blue card" the

Miranda warnings, which included the statement that appellant "had the right to

terminate the interview at any time." Appellant also testified that he understood the

warnings when given to him. Further, appellant failed to present any evidence that

he was "improperly intimidated" thus raising a voluntariness question; therefore, the

State need not prove voluntariness. See State v. Terrazas , 4 S.W.3d 720, 725 (Tex.

Crim. App. 1999) (when defendant presents evidence raising voluntariness question,

State must controvert evidence and prove voluntariness by a preponderance of the

evidence). Accordingly, we hold that the trial court did not abuse its discretion in

refusing to suppress the confession.

We overrule points of error two, three, and four.

Extraneous Offense

In points of error five and six, appellant argues that the trial court erred in

allowing testimony from Jonathan Gipson regarding appellant's admission that he had

committed another murder. Appellant contends that the testimony was irrelevant and

unduly prejudicial.

After the State filed a notice of intent to use extraneous offenses at the guilt-innocence and punishment phases, appellant conducted a pre-trial voir dire

examination of Gipson, an acquaintance of appellant. Appellant objected that the

testimony presented an "inadmissible extraneous offense" and was irrelevant and

unduly prejudicial. The State argued that "Gipson's testimony . . . clearly goes to

intent, which is . . . the whole issue of [appellant's] defense . . . ." The trial court

overruled the objection.

During the State's case-in-chief, appellant renewed his objection, the trial court

overruled the objection, and Gipson testified as follows about a conversation that he

had with appellant:

Q. So, was it your understanding that [appellant] got into a vehicle

with the victim?

A. Yes.

Q. Did there come a time where he told you about the actual

shooting of the victim?

A. Yes.

Q. What did [appellant] tell you?

A. He told me that the guy got out and ran that's when he shot him.

Q. So, it was your understanding from what [appellant] told you is

that the victim was running from him and that's when he shot

him?

A. Yes.

Q. Did [appellant] ever tell you the gun discharged in a struggle over

the gun?

A. The way I received it, I didn't think it was a struggle.

Q. Did he say to you, or in any way indicate to you that he had not

intended to kill the victim?

A. Repeat the question.

Q. Did [appellant] ever say, I didn't mean to do it, anything like that?

A. No, it wasn't like that; wasn't really like that.

Q. Did he make a comment about how difficult or easy it was to

shoot the victim?

A. I mean, yes, it was easier the second time.

Standard of Review

We review a trial court's admission of extraneous offense evidence for an

abuse of discretion. Rankin v. State , 974 S.W.2d 707, 718 (Tex. Crim. App. 1996);

Wolfberg v. State , 73 S.W.3d 441, 443 (Tex. App.--Houston [1st Dist.] 2002, pet.

ref'd). A trial court does not abuse its discretion as long as its decision to admit

evidence is within the "zone of reasonable disagreement." Montgomery v. State , 810

S.W.2d 372, 391-92 (Tex. Crim. App. 1991). Further, a trial court's decision

regarding admissibility of evidence will be sustained if correct on any theory of law

applicable to the case, even when the court's underlying reason for the decision is

wrong. Romero v. State , 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990).

Relevancy

Rule 404(b) states that evidence of extraneous offenses is not admissible at the

guilt-innocence phase of a trial to prove that a defendant committed the charged

offense in conformity with a bad character. Tex. R. Evid. 404(b); Nobles v. State ,

843 S.W.2d 503, 514 (Tex. Crim. App. 1992). Extraneous offense evidence may be

admissible, however, when it has relevance beyond character-conformity, for

example, to show proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Moses v. State , 105 S.W.3d 622, 626

(Tex. Crim. App. 2003). Rebuttal of a defensive theory is "one of the permissible

purposes for which relevant evidence may be admitted under Rule 404(b)." Id . Thus,

identity, intent, and the rebuttal of defenses are valid purposes for admitting evidence

pursuant to Rule 404(b). Johnson v. State , 68 S.W.3d 644, 651 (Tex. Crim. App.

2002) (extraneous offenses were relevant to establish a scheme of robbing to show

that the murder was committed during the course of the robbery to support a capital

murder indictment).

Extraneous offense evidence may become admissible to help prove intent only

if the intent required for a conviction for the primary offense is a contested issue in

the case. McGee v. State , 725 S.W.2d 362, 364 (Tex. App.--Houston [14th Dist.]

1987, no pet.). Intent can be characterized as a contested issue if (1) the required

intent for the primary offense cannot be inferred from the act itself or (2) the accused

presents evidence to rebut an inference that the required intent existed. Id . Intent is

most clearly in issue when, as here, the defendant argues that the charged offense was

unintentional or the result of an accident. See Johnson v. State , 932 S.W.2d 296, 302

(Tex. App.--Austin 1996, pet. ref'd). Once the defendant makes a claim such as

accident, mistake, or lack of intent, then intent can no longer be inferred from other

uncontested direct evidence, and the State is allowed to prove intent through evidence

of other crimes, wrongs, or acts. Id . (defendant's offer of partial confession that he

did not mean to kill decedent and testimony of ballistics expert showing gun shot

higher than point of aim placed intent at issue and allowed admission of other robbery

with gun).

Appellant asserts that there was no need for the jury to learn that he supposedly

killed before, in an unadjudicated prior extraneous offense, for the purpose of

establishing appellant's alleged intent in this case. The State contends that the

statements were relevant to rebut appellant's argument that he did not intentionally

shoot Rivera. We agree with the State. (2)

We hold that the trial court did not abuse its discretion by admitting the

testimony of Gipson based on relevancy because it was relevant to the issue of intent

to rebut the defensive theory of accident.

We overrule point of error five.

Unduly Prejudicial

Even if it is found to be relevant, evidence may be excluded under rule 403 if

the probative value of the evidence is substantially outweighed by the danger of

unfair prejudice. Tex. R. Evid. 403; Moses , 105 S.W.3d at 626 . Courts should

consider the following factors under a rule 403 analysis: (1) the strength of the

extraneous offense evidence to make a fact of consequence more or less probable; (2)

the potential of the extraneous offense to impress the jury in some irrational but

indelible way; (3) the time during trial that the State requires to develop evidence of

the extraneous misconduct; and (4) the need by the State for the extraneous evidence.

Wheeler v. State , 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). At appellant's

counsel's request, the trial court did not give a limiting instruction to the jury

regarding the extraneous offenses.

Because intent was at issue, Gipson's testimony made a fact of consequence,

that appellant acted intentionally, more probable. Gipson was one of 15 witnesses

who testified at appellant's trial. The complained-of testimony constituted one line

out of more than 600 lines of testimony given by Gipson. The testimony recounted

a mere statement by appellant that this was the second time that he had done this. It

provided no details, much less any gory details of the prior incident. Appellant's

counsel mentioned Gipson's testimony in his closing argument, but only regarding

the credibility of the witness, not the content of the testimony offered. The State did

not mention Gipson's testimony in its closing arguments. Appellant has not shown

that the verdict was unduly prejudiced by Gipson's testimony.

We hold that the trial court did not abuse its discretion by admitting extraneous

offense evidence that was unduly prejudicial.

We overrule point of error six.

Charge Error

In point of error seven, appellant contends that the trial court erred in

overruling his objection to the jury charge that failed to contain an instruction on the

lesser-included offense of manslaughter.

Standard of Review

A charge on a lesser-included offense should be given when (1) the

lesser-included offense is included within the proof necessary to establish the offense

charged and (2) there is some evidence that would permit a rational jury to find that

the defendant is guilty of the lesser offense but not guilty of the greater. Salinas v.

State , 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). In meeting the second prong,

there must be some evidence from which a rational jury could acquit the defendant

of the greater offense while convicting him of the lesser-included offense. Id .

Felony murder is a lesser-included offense of capital murder. Id . Culpable

mental state is the only difference between the two offenses. "Capital murder

requires the existence of an 'intentional cause of death,' . . . while in felony murder,

'the culpable mental state for the act of murder is supplied by the mental state

accompanying the underlying . . . felony . . . .'" Rodriquez v. State , 548 S.W.2d 26,

28-29 (Tex. Crim. App. 1977). Manslaughter is a lesser-included offense of the

offense of murder. Moore v. State , 969 S.W.2d 4, 9 (Tex. Crim. App. 1998).

Manslaughter requires proof that the defendant acted recklessly, that is, that he

consciously disregarded a substantial risk of which he was aware. See Tex. Pen.

Code Ann. §§ 6.03 (c), 19.04(a) (Vernon 2006).

Analysis

Appellant contends that there is evidence to support the charge of

manslaughter. Specifically, appellant denies that he intentionally killed Rivera.

Appellant admits, however, that he intentionally robbed Rivera, but states that, after

Rivera grabbed for the gun, it accidentally went off. That appellant may have

recklessly caused Rivera's death does not entitle him to an instruction on

manslaughter under the facts of this case.

Appellant admits that he robbed Rivera. A homicide committed in the course

of a robbery does not comprise the offense of manslaughter; rather, it constitutes at

the very least, the offense of felony murder as defined by Texas Penal Code section

19.02(b)(3). See Lee v. State , 860 S.W.2d 582, 587 (Tex. App.--Houston [14th Dist.]

1993, pet. ref'd). Under section 19.02(b)(3), a person commits the offense of felony

murder if, in the course and furtherance of committing a felony, the person commits

an act clearly dangerous to human life that causes the death of an individual. Tex.

Pen. Code Ann. § 19.02 (b)(3) (Vernon 1994); Rousseau v. State , 855 S.W.2d 666,

673 (Tex. Crim. App. 1993). Appellant admits the commission of the underlying

robbery. Thus, whether he recklessly, rather than intentionally, caused the death of

Rivera at most raises the issue of felony murder. A jury could not rationally find

appellant guilty only of manslaughter. See Ross v. State , 861 S.W.2d 870, 876 (Tex.

Crim. App. 1993); Gadsden v. State , 915 S.W.2d 620, 623 (Tex. App.--El Paso 1996,

no pet.).

Accordingly, we conclude that the trial court did not abuse its discretion in not

including an instruction on manslaughter. We overrule point of error seven.

Sufficiency

In points of error eight and nine, appellant argues that the evidence was legally

and factually insufficient to support his conviction for capital murder because the

record fails to show that he had the intent to cause the death of the complainant.

Standard of Review

The standard for reviewing the legal sufficiency of the evidence is whether,

after reviewing the evidence in the light most favorable to the verdict, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 318-19 , 99 S. Ct. 2781, 2788-89 (1979).

When conducting a factual-sufficiency review, we view all of the evidence in a

neutral light. Cain v. State , 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set

the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong

and manifestly unjust or (2) the verdict is against the great weight and preponderance

of the evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2003).

Under the first prong of Johnson , we cannot conclude that a conviction is

"clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence

admitted, we would have voted to acquit had we been on the jury. Watson v. State ,

204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson ,

we cannot declare that a conflict in the evidence justifies a new trial simply because

we disagree with the jury's resolution of that conflict. Id. Before finding that

evidence is factually insufficient to support a verdict under the second prong of

Johnson , we must be able to say, with some objective basis in the record, that the

great weight and preponderance of the evidence contradicts the jury's verdict. Id. In

conducting a factual-sufficiency review, we must also discuss the evidence that,

according to the appellant, most undermines the jury's verdict. See Sims v. State , 99

S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence

because that determination depends on the fact-finder's evaluation of credibility and

demeanor. Cain , 958 S.W.2d at 408-09 . As the determiner of the credibility of the

witnesses, the fact-finder may choose to believe all, some, or none of the testimony

presented. Id. at 407 n.5.

Analysis

Appellant claims that the evidence was insufficient to support the conviction

for capital murder as a matter of law and fact because the record fails to show that

appellant had the intent to cause the death of the complainant at the time of the

alleged offense. Appellant contends that the audio-taped custodial confessions

proved that his intent was to rob the complainant, but the record does not show that

he intended to kill the complainant. Nevertheless, the State asserts, and we agree, that

the jury could have found beyond a reasonable doubt that appellant intentionally

caused Rivera's death when he pointed a loaded gun at him and pulled the trigger.

Faircloth testified that one of the robbers said to him, "Don't lose your life over this."

Rivera's hands reflected no injuries that would have likely been sustained had he

grabbed the gun, nor did they contain any gun powder residue. Officer Abby testified

to the following:

Q. Based on your experience, if someone had their [sic] hand on top

of the semiautomatic when the weapon was fired, would you

expect to see something in the hand that was on top of the gun?

A. Yeah, you would definitely have a pretty severe injury on the

inside of your hand.

Q. Where the slide scraped it, or would it be burned or scraped or cut

or what? I know you're just basing this on what your experience

is with weapons.

A. Okay. Yes, you would have a scrape mark from the slide moving

back, but what would be more damaging is as the slide moves

forward, it would probably grab the skin of your hand in between

the slide and the chamber itself.

Faircloth testified that he never saw a struggle between Rivera and the robber before

the gun went off. Appellant did not tell Gipson that he struggled with Rivera, nor did

he tell Gipson that the gun discharged accidentally.

We hold that the evidence, when viewed in the light most favorable to the

verdict, is legally sufficient such that a rational trier of fact could have found

appellant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307,

318-19 , 99 S. Ct. 2781, 2788-89 (1979).

The only contrary evidence is appellant's recorded statement, which stated:

Appellant: At first I just come up to him and get the dude's money.

Ofc. Abby: Uh huh.

Appellant: So the dude [Rivera], and I didn't even have to say

anything, the dude go in his wallet and he, he didn't have

no money. He had emptied out all his pockets and he

didn't have nothing.

Ofc. Abby: That's the guy in the pa-, driver's side?

Appellant: Uh huh.

Ofc. Abby: Okay.

. . .

Appellant: I'm thinking he fixing to run like his friend run. But he

was, I had my foot out the door and the door was open. It

was like I was in the middle of getting up when he grabbed

the gun, like he grabbed my hand like right there where the

trigger guard is or whatever. And when he did that I was

. . . already coming out the car so I like pull my hand back

and then that's when the gun had went off.

The Court of Criminal Appeals has held that a defendant's own statement regarding

his intent is not enough to render the evidence, without more, insufficient. See Sells

v. State , 121 S.W.3d 748, 754 (Tex. Crim. App. 2003) (holding that, because the only

evidence weighing against jury finding that defendant entered home with no specific

intent to commit sexual assault was defendant's own statement, this was not enough

to render evidence insufficient). Looking at all this evidence in a neutral light, we

conclude that the evidence is not so weak that the verdict is clearly wrong and

manifestly unjust; nor is the contrary evidence so strong that the standard of proof

beyond a reasonable doubt could not have been met. Escamilla v. State , 143 S.W.3d

814, 817 (Tex. Crim. App. 2004).

We overrule points of error eight and nine. Motion for New Trial

In point of error 10, appellant argues that the trial court erred in overruling his

motion for new trial, where he presented evidence that "Jonathan Gipson had not told

the truth during the trial, and where Gipson's testimony was critical to the State's

case."

Standard of Review

We review the trial court's denial of a motion for new trial for abuse of

discretion. See Charles v. State , 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). The

question is whether the trial court "acted without reference to any guiding rules or

principles." Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Motions for new trial based upon newly discovered evidence are controlled by

article 40.001 of the Texas Code of Criminal Procedure, which provides that "[a] new

trial shall be granted an accused where material evidence favorable to the accused has

been discovered since trial." Tex. Code Crim. Proc . Ann. art. 40.001 (Vernon

Supp. 2006); Keeter v. State , 74 S.W.3d 31, 36 (Tex. Crim. App. 2002). Texas

courts have used a four-part test in determining whether a trial court may grant a new

trial based on newly discovered evidence: (1) the newly discovered evidence was

unknown or unavailable to the movant at the time of his trial; (2) the movant's failure

to discover or obtain the evidence was not due to a lack of diligence; (3) the new

evidence is admissible and is not merely cumulative, corroborative, collateral, or

impeaching; and (4) the new evidence is material and would probably cause a

different result in another trial . Keeter , 74 S.W.3d at 36-37 .

Analysis

In his motion for new trial, appellant alleged that he was entitled to a new trial

because of "newly-discovered evidence" consisting of his mother's testimony that she

believed Gipson admitted to her that he lied under oath. A hearing was conducted on

appellant's motion for new trial. Gipson testified at the hearing that he testified

truthfully when he told the jury that appellant admitted to him that he had shot Rivera.

Sheryl Bookman, appellant's mother, testified that Gipson told her that he lied about

having conversations with appellant regarding the offense. Sheryl Bookman stated

in an affidavit that, when she approached appellant's trial attorneys about Gipson's

admissions, she was told that the evidence was already in, and that she was too late.

Therefore, appellant's evidence was available and known during his trial.

Furthermore, a matter is impeaching if it seeks only to test a witness's general

credibility. Keller v. State , 662 S.W.2d 362, 365 (Tex. Crim. App. 1984). Sheryl

Bookman's testimony merely attempts to discredit Jonathan Gipson's testimony

during trial. The new testimony was merely an attempt to impeach Gipson's

credibility. Thus, two of the four steps in the four-part test in determining whether

a trial court may grant a new trial based on newly discovered evidence have not been

met. Accordingly, we hold that the trial court did not abuse its discretion in denying

appellant's motion for new trial.

We overrule point of error 10.

Conclusion

We affirm the trial court's judgment.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

1.

The State sought the death penalty.

2.

The State also contends that Rule 404(b) is not implicated in this case because

appellant's statements are only "inchoate thoughts" and not extraneous bad acts. We

decline to address this contention.