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Kulow v. State

Court of Appeals of Texas, Fourteenth District

June 15, 2017

CHRISTOPHER GENE KULOW, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 21st District Court Washington County, Texas, Trial Court Cause No. 16980

          Panel consists of Justices Busby, Donovan, and Brown.

          OPINION

          J. BRETT BUSBY JUSTICE.

         Appellant Christopher Kulow, a former deputy jailer, was convicted of official oppression and sentenced to one year in county jail for assaulting a restrained inmate under his charge. See Tex. Penal Code Ann. § 39.03 (West 2016). Appellant appeals his conviction, raising two issues. Appellant first argues the trial court erred in not allowing him time to develop or use information that the State belatedly disclosed in violation of Brady. We conclude there was no Brady violation because appellant did not show prejudice.

         Appellant also contends the trial court erred in preventing him from questioning a witness about the witness's criminal history. We conclude the trial court did not abuse its discretion in excluding the witness's history as irrelevant or unfairly prejudicial. We therefore affirm the trial court's judgment.

         Background

         Gregory Webb attended Blinn College from 2011 to 2013. In 2011, he was placed on probation for possession of marijuana. In August 2013, Webb was arrested for possession of marijuana, violating probation, and criminal trespass. After his arrest, Webb was placed in solitary confinement for disruptive behavior. Specifically, Webb was continuously pressing the jail's intercom system button from inside his cell, preventing other inmates and outside callers from using the system. While in solitary confinement, Webb displayed disruptive behavior again and continued to push the intercom button. Appellant and Deputy Jailer Shannon May went to Webb's cell with a restraint chair to stop Webb's disruptive behavior.

         Appellant opened Webb's cell and Webb voluntarily walked to the restraint chair and sat down. As May secured Webb in the restraint chair, Webb cursed and insulted appellant. Webb did not physically resist May. Video evidence showed that before Webb was fully restrained, appellant knocked the restraint chair onto the ground and struck Webb in the face.

         Appellant was charged with official oppression and his case proceeded to trial. Just before trial began, the State made a motion in limine requesting that defense counsel approach the bench before questioning Webb about his criminal history other than the offense for which he was jailed on the day of the incident. Defense counsel responded he had not received any criminal history from the State, and if there was any, he was entitled to it under Brady. The trial court ordered the State to deliver Webb's arrest records to defense counsel and granted the motion in limine. The arrest records showed Webb had been arrested for aggravated assault in March 2012 and aggravated assault in February 2015.

         During Webb's direct examination, the State asked Webb when he stopped taking classes at Blinn College. Webb responded he stopped taking classes in May 2013. The State then asked if Webb "managed to get in some trouble" while at Blinn College. Webb then testified he was placed on probation for possession of marijuana in 2011. Webb testified that in August 2013, after he stopped taking classes at Blinn College, he was arrested for possession of marijuana, violating probation, and criminal trespass. This arrest was the reason Webb was in jail on the day of the incident with appellant.

         After Webb's direct examination, defense counsel approached the bench and asked to cross-examine Webb about the 2012 aggravated assault arrest because the State mischaracterized the trouble Webb had gotten into while at Blinn College. Defense counsel also requested permission to ask Webb about his 2015 arrest for aggravated assault, which occurred after the incident in question. The State responded that after Webb's arrest in 2012, the State closed the case for insufficient evidence. Therefore, the State argued, it would be highly prejudicial to ask Webb about the arrest because there was no conviction. Defense counsel stated he could not respond to that because he did not have the State's file on the case. Before ruling on defense counsel's request, the trial court permitted counsel to review the file for Webb's 2012 arrest over lunch.

         After the lunch break, defense counsel asked again to cross-examine Webb about his 2012 aggravated assault arrest because the State had opened the door and left a false impression with the jury about the trouble Webb was in while at Blinn College and why he left Blinn College. The State responded that it did not ask Webb why he left Blinn College, and that it asked him when he left simply to establish how long he had attended the school. Defense counsel also argued he should be allowed to cross-examine Webb about the 2015 arrest because the State led the jury to believe he had only been charged with Class B misdemeanors. The State responded that the 2015 arrest was irrelevant because it was not the reason Webb was in jail on the day of the incident with appellant.

         The trial court ruled that the 2015 arrest was irrelevant. The trial court also denied defense counsel's request to cross-examine Webb about his 2012 arrest. Defense counsel then requested a continuance to get Webb's records from Blinn College. The State responded that it was not relevant why Webb left Blinn College. The trial court denied the requested continuance.

         The jury convicted appellant of official oppression, and the trial court sentenced him to one ...


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