MARK BRAUER v. TEXAS A&M UNIVERSITY, KINGSVILLE--Appeal from 105th District Court of Kleberg County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2003 » MARK BRAUER v. TEXAS A&M UNIVERSITY, KINGSVILLE--Appeal from 105th District Court of Kleberg County

State: Texas

Court: Texas Northern District Court

Docket No: 13-01-00868-CV

Case Date: 10/23/2003

Plaintiff: MARK BRAUER

Defendant: TEXAS A&M UNIVERSITY, KINGSVILLE--Appeal from 105th District Court of Kleberg County

Preview:Rogelio Porter v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County
No. 04-99-00115-CR Rogelio PORTER, Appellant v. The STATE of Texas, Appellee From the 218th District Court, Atascosa County, Texas Trial Court No. 97-09-0214-CRA Honorable Stella Saxon, Judge Presiding Opinion by: Alma L. L pez, Justice Sitting: Phil Hardberger, Chief Justice Alma L. L pez, Justice Paul W. Green, Justice Delivered and Filed: June 28, 2000 AFFIRMED Rogelio Porter ("Roger") was convicted for committing the offense of theft of property with a value of $20,000 or more, but less than $100,000. Roger challenges his conviction in this appeal. Because we find no reversible error, we affirm the judgment of the trial court. Factual and Procedural Background Roger and his wife, Consuelo Porter ("Connie") became employees of Olivia Golden ("Mrs. Golden") following the death of her husband, Roy Golden. On January 1, 1995, Roger and Connie entered into an employment contract with Mrs. Golden to become her full-time caregivers. Under the terms of the contract, Mrs. Golden was to pay Roger and Connie a total of $600 per week in addition to free room and utilities. In return, Roger and Connie were to provide round-the-clock daily companionship to Mrs. Golden; to protect Mrs. Golden from any direct contact with her estranged son, Fred Richter; to drive Mrs. Golden to doctor's appointments, shopping, to the bank, personal errands, visits to relatives and friends; to provide everyday housekeeping duties; to provide home, yard, and vehicle maintenance; to coordinate Mrs. Golden's everyday life activities; to assist Mrs. Golden in communication with third parties due to her hearing impairment; to create and maintain personal finance records and correspondence; and to act as caregivers and provide security for Mrs. Golden. In addition, Roger and Connie were to receive two weeks unpaid vacation. Later, on February 4, 1995, Mrs. Golden executed a holographic will naming Roger and Connie as beneficiaries of some of her property. On February 27, 1995, Mrs. Golden executed a durable power of attorney naming Roger as her
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attorney-in-fact to conduct her financial affairs. Subsequently, on March 14, 1995, Mrs. Golden executed a formal will giving her children and grandchildren specific gifts of $1,000 each and naming Roger and Connie as beneficiaries of some property in Pleasanton and the residue of the estate. On May 16, 1995, Mrs. Golden set up a multiple-party checking account with rights of survivorship, naming Roger, Connie, and herself as joint owners of the account. On November 18, 1996, Fred Richter filed an application for guardianship over Mrs. Golden's person and estate, in which he claimed Mrs. Golden was totally incapacitated and unable to care for herself or manage her property. On April 7, 1997, Fred Richter had Mrs. Golden sign a revocation of recorded power of attorney and a new power of attorney naming himself as her attorney-in-fact. Shortly thereafter, Roger and Connie obtained a temporary restraining order to prevent Fred Richter from using his power of attorney. On May 21, 1997, the temporary restraining order was quashed, and on May 31, 1997, Fred filed a report with the Atascosa County Sheriff's Department, complaining that Roger and Connie had stolen property from Mrs. Golden. Accordingly, Roger and Connie's employment was terminated, and Fred Richter placed Mrs. Golden in a nursing home. Roger and Connie were indicted for the offense of theft. On September 9, 1998, a jury found both Roger and Connie guilty of 36 counts of theft of property with the aggregate value of $20,000 or more but less than $100,000. The trial court assessed punishment at 10 years confinement, suspended to 10 years probation. On December 30, 1998, the trial court granted Connie's motion for new trial, but denied Roger's motion for new trial. On appeal, Roger complains that the evidence is legally and factually insufficient to support his conviction. In addition, Roger contends that the trial court erred: 1) in denying a defense charge based on joint ownership of property; 2) in admitting State's exhibit 48 which contained hundreds of bank documents in no particular order; and 3) in denying Roger's motion for new trial based on a Brady violation. Legal Sufficiency A person commits an offense of theft if he "unlawfully appropriates property with the intent to deprive the owner of property." See Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2000). "Appropriate" means to exercise control over personal property. See id. at 31.01(4)(B). Appropriation of property is unlawful if it is without the owner's effective consent. See id. at 31.03(b)(1). "Effective consent" includes consent by a person legally authorized to act for the owner. See id. at 31.01(3). Consent is not effective if it is given by a person who by reason of mental disease or defect is known by the actor to be unable to make reasonable property dispositions or if it is given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property. See id. Roger was charged with unlawfully appropriating Mrs. Golden's property with the intent to deprive Mrs. Golden of her property. In his first issue, Roger complains that the evidence is legally insufficient to support his conviction. Specifically, Roger argues that overwhelming evidence exists that certain monies were not appropriated without Mrs. Golden's effective consent. Roger claims he had joint ownership of the checking account and joint ownership of the recreational vehicle. Further, Roger asserts he had the authority and right, under a valid power of attorney, to transact the financial affairs of Mrs. Golden. To review a challenge about the legal sufficiency of the evidence, the court of appeals views the entire body of evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v. State, 937 S.W.2d 479, 482-83 (Tex. Crim. App. 1996). We consider all the evidence, admissible and inadmissible, see Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998), and even evidence erroneously admitted is properly considered in a legal sufficiency review, see Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994). This standard is the same for both a direct and circumstantial evidence case, and the prosecution need not exclude every other reasonable hypothesis except the guilt of the accused. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1046 (1994). In practice, circumstantial evidence often has equal or even greater probative value than direct evidence. See Brown v. State, 911 S.W.2d 744, 745-46 (Tex. Crim. App. 1995). After reviewing the evidence in the light most favorable to the verdict, we find that the evidence is legally sufficient
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for the jury to find that Roger unlawfully appropriated Mrs. Golden's property with the intent to deprive her of that property. Specifically, Eva Jo Mock, the business manager of Stahmann Sales Company, who sells recreational vehicles, testified that in May 1996, Roger and Mrs. Golden purchased a recreational vehicle ("RV") for $23,368. Mock also testified that Mrs. Golden seemed fine with purchasing the RV, and that Roger and Connie were going to take Mrs. Golden on trips to tour the countryside. Roger and Connie thought it would be more comfortable for Mrs. Golden to ride in the RV instead of an automobile. The RV was purchased with retirement funds from Mrs. Golden's annuity account and Roger's and Mrs. Golden's names were both put on the title. Roger claims that Mrs. Golden signed the title and then handed it over to him. Later, Roger sold the RV on consignment. When the RV was sold on May 15, 1997, the consignor, Larry Avila, made the check payable only to Roger for $16,515, and subsequently, Roger cashed the check. Additionally, the evidence shows that Roger repaired and serviced the RV three times for approximately $874. An attorney, who was investigating to see if the RV had been sold for fair market value, testified that he had asked what Roger did with the proceeds from the RV sale and Roger replied that he used the money for living expenses. Roger testified, however, that he used the money for legal expenses. Moreover, Stephen Dziuk, the investment representative who managed Mrs. Golden's retirement accounts and annuity, testified that he was concerned about the annuity withdrawals that had been made. Dziuk attested that Roger had called and requested funds be transferred to cover the specific drafts. Three withdrawals had been made--$2,200 on August 21, 1995, $23, 368.48 (for the RV) on June 3, 1996, and $9,400 (less $2,500 cash for a trip) on June 24, 1996--for a total of $34,968.48. No money was placed back in the account to replace the withdrawals. In addition, shortly after June 1996, Dziuk made a visit to see Mrs. Golden in person, and found her totally incapacitated. Dziuk testified that he asked Roger for an accounting on the annuity fund twice and never received one. He had wanted an accounting before he released any more additional funds. Furthermore, the evidence shows that Roger paid for many items from Mrs. Golden's checking account as well as making numerous cash withdrawals from the ATM machine. Roger purchased a major medical health insurance policy for $321 per month totaling $4,061 with money from Mrs. Golden's checking account. An insurance agent testified that Roger also purchased two home owner's insurance policies for his houses at "1311 Waxwing" in Pleasanton and "710 Vickers Street" in San Antonio with money from Mrs. Golden's checking account. Furthermore, Roger paid rent to his sister-in-law, Julie, to use her van for a trip to take Mrs. Golden to Minnesota, a total of $1,500, and also paid Julie $500 to house-sit. Later, Roger purchased the van for $7,576 with funds from Mrs. Golden's checking account. Roger opened a Southwestern Bell mobile phone account and subsequent bills were paid from Mrs. Golden's checking account. The pastor's wife at Roger's church sat with Mrs. Golden for two or three hours a day for several days and was paid a total of $450. Moreover, Roger paid Pastor Chapa's electric bill for two months. Roger upgraded his computer, repaired it, and purchased a new keyboard for approximately $715. Roger purchased a surround sound system for $421.09, which was a Christmas gift from Mrs. Golden. Roger opened a secured Visa card with a $2,500 check from Mrs. Golden's checking account. The $2,500 check was deposited into a Certificate of Deposit in Roger's and Connie's names, and used as security for the Visa card, also in their name. Roger then charged on the Visa card and made his credit card payments with checks from Mrs. Golden's checking account. The evidence further shows that Mrs. Golden stayed in a nursing home three times from January 1997 to March 1997 for a total of 13 days for $942.50, yet there were several ATM withdrawals made from Mrs. Golden's checking account while she was staying in the nursing home. The ATM card was in Mrs. Golden's name. In fact, from January 1995 to April 1997, the total amount of ATM withdrawals from Mrs. Golden's checking account was $19,099.75. Further, Mrs. Golden never had an ATM card before Roger and Connie became her caretakers. In addition, the evidence reveals that Roger and Connie continued to pay themselves wages during the same time they paid for nursing home care and paid for people to watch and care for Mrs. Golden. Furthermore, the evidence shows that Mrs. Golden suffered from numerous chronic health problems during the time Roger and Connie were employed as caretakers. According to medical experts, Mrs. Golden experienced periods of senile dementia and had spells of confusion and delusion. As time passed, Mrs. Golden's mental capacity greatly deteriorated. The evidence demonstrated that there was even a period of time when Mrs. Golden thought that Roger was her husband. At the trial on August 31, 1998, Mrs. Golden was in the advanced stages of Alzheimers disease. According to her doctor, Mrs. Golden's problems with Alzheimers began years ago, and she possibly experienced such problems more than ten years ago. Roger, however, contends that this medical doctor never even reviewed Mrs.

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Golden's medical records. The director of the medical records at Tri-City Community Hospital testified that Mrs. Golden had been admitted to the hospital about thirteen times from June 1994 to April 1997. Here, the evidence manifests that Mrs. Golden was unable to give effective consent to the alleged incidents of theft because of her diminished mental capacity and numerous health problems, including depression, severe dementia, and Alzheimers disease. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Barcenes v. State, 940 S.W.2d 739, 744 (Tex. App.-- San Antonio 1997, pet. ref'd). Likewise, the jury is entitled to draw reasonable inferences from circumstantial evidence to ultimate facts. See Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex. App.--San Antonio 1994, pet. ref'd). In the instant case, the jury judged the credibility of all the witnesses and drew reasonable inferences from the evidence which resulted in Roger's guilty verdict. Viewing the entire body of evidence in the light most favorable to the prosecution, we hold that any rational trier of fact could have found the essential elements of theft beyond a reasonable doubt. Because there is sufficient evidence to find all of the elements of theft, we overrule this issue. Factual Sufficiency In his second issue, Roger complains that the evidence was factually insufficient to support his conviction of theft. In reviewing a challenge to the factual sufficiency of the evidence, we must view all the evidence without regard to whether the evidence is favorable to the State or the appellant. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We consider all of the evidence equally, being appropriately deferential to the fact finder's determination. See id. at 133. Following such a review, we will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 135. A clearly wrong and unjust verdict is one that is manifestly unjust, shocks the conscience, or clearly demonstrates bias. See Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998). While we must review the evidence on both sides, we are required to show appropriate deference to the triers of fact by not substituting our judgment for theirs. See De Los Santos v. State, 918 S.W.2d 565, 569 (Tex. App.--San Antonio 1996, no pet.). Furthermore, conflicts in the testimony are for the jury to resolve. See id. In the instant case, Roger claims that the evidence demonstrated that Mrs. Golden effectively consented to Roger's management of her financial matters when she executed a durable power of attorney and gave him joint ownership in Mrs. Golden's checking account and joint ownership of the recreational vehicle. The medical records revealed that Mrs. Golden was alert and oriented in the early part of 1995. A former employee for Country Bank testified that upon notarizing the durable power of attorney in February 1995, she specifically asked Mrs. Golden if she understood what she was doing by giving Roger full access to her business affairs, and Mrs. Golden responded positively and then signed and initialed the power of attorney. Moreover, the attorney who drafted the will in May 1995 testified that Mrs. Golden knew what she was doing. Likewise, the jury viewed the videotaped execution of the will, and Roger claims that the videotape showed Mrs. Golden's competence. However, later in 1995, the medical records showed that at times Mrs. Golden was disoriented and confused at night and other times she was alert. From April 1996 to June 1997, the approximate dates of the counts of theft in the jury charge, the evidence revealed a serious decline in Mrs. Golden's mental state. By early 1997, Mrs. Golden's mental state was severely diminished. Mrs. Golden entrusted Roger to keep her finances in order when she gave him power of attorney and made him a joint owner of her checking account. Instead, the evidence shows that before Roger and Connie became her caretakers, Mrs. Golden was frugal with her spending habits. In addition, the deposits into Roger's and Connie's personal checking account, with checks drawn from Mrs. Golden's account far exceeded their $2,400 a month salary. The evidence shows that the Porters deposited $3,000 to $6,200 a month into their own personal checking account with checks drawn from Mrs. Golden's account. The State contends that Mrs. Golden did not and could not have effectively consented to all the transactions that were outside her care. Just because Mrs. Golden gave Roger durable power of attorney and joint ownership in her checking account and RV, does not mean that Mrs. Golden effectively consented to the way Roger managed her money. Connie testified that before Roy Golden died, Roger helped Roy do some work around the Goldens' property. In addition, when the Goldens made a trip to Minnesota, and Roy got very sick, Roger went to Minnesota and picked up the Goldens and brought them back to their home in Pleasanton. Roy was admitted into the hospital, and Mrs. Golden

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did not want to be left by herself. For 30 days while Roy was in the hospital, Roger and Connie stayed with Mrs. Golden at her home. After Roy died, the Porters helped Mrs. Golden with the funeral arrangements. Moreover, Connie testified that Bonnie Richter, Mrs. Golden's granddaughter, was instrumental in retaining the Porters to take care of Mrs. Golden. Connie further testified that Mrs. Golden wanted to travel because she never had a chance to do so when she was younger. If Mrs. Golden wanted to take a trip, it was not the Porters place to say "no." Connie claimed that Mrs. Golden was their boss and "calling the shots," and appeared to have the funds to take these trips. Furthermore, Connie testified that Mrs. Golden gave her daughter, Carol Ann, money. When Mrs. Golden and the Porters were on a trip in Minnesota, the Porters went with Mrs. Golden and located an ATM machine, withdrew money, and then Mrs. Golden handed Carol Ann the cash. Roger testified he and his family stayed with Mrs. Golden during Roy Golden's stay in the hospital and never moved out after that. They signed the employment contract six months after Roy's death. Roger stated that when he helped Mrs. Golden pay her bills, he would make out the checks and Mrs. Golden would sign them. Mrs. Golden could not write very well and was very shaky because her arthritis was bad. Roger claimed that it was Mrs. Golden's idea to put Roger and Connie as signatories on her checking account. In addition, Mrs. Golden had her checkbook with her in her purse most of the time, except when Roger had to purchase something outside the house. Roger testified that he told Mrs. Golden when he needed certain things and she, in turn, gave him the checkbook. Roger made his purchases, then gave Mrs. Golden back the checkbook. The deposit of $9,400 less cash of $2,500 that contained Roger's signature was used for a trip. Regarding the mobile phone, Roger claimed that it was purchased because Mrs. Golden was afraid of car trouble. In addition, Mrs. Golden went with Roger to purchase the RV and directed that both their names be put on the title. When Roger cashed the check from the sale of the RV, he contends he used the money to fight the legal battles when Fred Richter filed for guardianship of Mrs. Golden. Roger claims that he and Connie hired an attorney to fight the guardianship in accordance with their employment contract, namely, to fulfill the Goldens' wishes not to let Fred Richter near Mrs. Golden. Roger contends that he did not intend to take Mrs. Golden's money, but instead, tried to give her the best years of her life. In addition, Roger decided to buy the van to make it easier to transport Mrs. Golden. Roger claims that Mrs. Golden gave them the van because everything was going to be theirs anyway. Regarding paying Pastor Chapa's electric bill, Roger claims he did not have his personal check book with him, but later, paid Mrs. Golden back in cash. Since the jury has the deference to resolve the conflicts in testimony, the jury chose to believe the State's case over Roger's testimony. The State's proffered evidence of the medical records revealed Mrs. Golden's diminished mental capacity and numerous health problems, including depression, severe dementia, and Alzheimers disease. Even though Roger contends that Mrs. Golden effectively consented to many of the transactions, the jury resolved the apparent conflicts in the testimony. Because the jury resolved the conflicts in the testimony, we do not find the weight of the evidence to be wrong or unjust. Since the evidence is factually sufficient to support Roger's conviction of theft, we overrule this issue. Defense of Mistake of Fact In his third issue, Roger complains that the trial court erred in refusing to submit the defense's requested jury charge on joint ownership of property. Specifically, Roger contends his authority to deal with the property as either a joint owner or by power of attorney negated the intent required for theft and established a mistake of fact defense, and therefore, his requested instruction should have been submitted to the jury. In reply, the State argues that Roger's requested instruction was insufficient to put the trial court on notice that a mistake of fact issue should have been incorporated into the charge. Upon a timely request, a defendant has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, regardless of what the trial court may or may not think about the credibility of this evidence. See Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). A charge on a defensive issue is required if the accused presents affirmative evidence that would constitute a defense to the crime charged and a jury charge is properly requested. See Miller, 815 S.W.2d at 585. In fact, the trial court must grant the defendant an instruction regardless of whether the issue is raised by the defendant's testimony alone or otherwise. See id. If a defendant produces evidence raising each element of a requested defensive instruction, he is entitled to the instruction regardless of the source and

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strength of the evidence. See Hamel, 916 S.W.2d at 493. When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 837 (1993). Thus, if the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. See id. However, when the evidence fails to raise a defensive issue, the trial court commits no error in refusing a requested instruction. See id. To determine whether the issue of mistake of fact was raised, we must view the evidence in light of the statutory provision. Section 8.02 of the Texas Penal Code provides that it is a defense to prosecution that the actor through a mistake formed a reasonable belief about a matter of fact, if his mistaken belief negated the kind of culpability required for the commission of the offense. See Tex. Pen. Code Ann. 8.02 (Vernon 1994). "Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. See Tex. Pen. Code. Ann. 1.07(a)(42) (Vernon 1994). Unlike other statutory defenses, mistake of fact negates an element of the offense: the culpable mental state. Therefore, if the general principle was applied, there would be no instruction specifically directed to mistake of fact because the matter is adequately covered in the instructions on the elements of the offense. However, because the defense of mistake of fact is statutory, the Court of Criminal Appeals has held that the defendant is entitled to an instruction on the defense when raised by the evidence. See, e.g., Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991)(kidnapping); Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990) (theft); Woodfox v. State, 742 S.W.2d 408, 409 (Tex. Crim. App. 1987) (unauthorized use of motor vehicle). In the instant case, Roger contends that an instruction should have been given regarding joint ownership of property. Roger claims that his testimony revealed that he and Mrs. Golden had joint ownership in the checking account and the RV, and that there was no evidence that Mrs. Golden had a greater right to or exclusive possession of the property. Further, the evidence showed that Roger was given statutory power of attorney, which gave him the right to transact all of Mrs. Golden's affairs, thus negating the intent required for theft. Roger requested that the trial court include the following instruction: "There may be more than one owner of property. For the reason that the evidence in this case demonstrates various forms of joint ownership which make it important to the defendants that the jury be so charged." Accordingly, Roger argues that the trial court was apprised that he established a mistake of fact defense when he testified about his belief of ownership and when he requested the instruction be added to the jury charge. In reply, the State claims that Roger's requested charge was insufficient to inform the trial court of a request for a mistake of fact instruction. Morever, even if the court finds that Roger's requested charge was sufficient to request a charge on mistake of fact, Roger was not entitled to a mistake of fact instruction because it does nothing more than negate the ownership element of the charge. We agree with the State's argument. Roger's requested instruction was not a mistake of fact defense. In effect, Roger's request did not negate the culpable mental state element in the charge, but rather, his request negated the ownership element of the charge. Roger was not allowed a mistake of fact charge when there was a claim of right because that was for the jury to decide. Because Roger's requested instruction merely negated the ownership element in the charge, he was not entitled to have the instruction included in the charge. See Huff v. State, 897 S.W.2d 829, 837 (Tex. App.--Dallas 1995, pet. ref'd); Weaver v. State, 722 S.W.2d 143, 148 (Tex. App.--Houston [1st Dist.] 1986, no pet.). Thus, we overrule this issue. Admissibility of State's Exhibit 48 In his fourth issue, Roger complains that the trial court erred in admitting State's exhibit 48, which contained approximately 1300 checks and many bank statements. Specifically, Roger contends that some of the checks included in the exhibit were not relevant because they were written prior to the first date of theft alleged in the indictment and may have been misleading and confusing to the jury. Relevant evidence is evidence that tends to make the existence of any fact which is of consequence to the determination of the action more or less probable than it would be without the evidence. See Tex. R. Evid. 401. Generally, all relevant evidence is admissible, and evidence that is not relevant is not admissible. See Tex. R. Evid. 402. The trial court's determination of relevancy is subject to the abuse of discretion standard of review. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). Where the appellate court can say with confidence that by no reasonable perception of common experience can it be concluded that proffered evidence has a tendency to make the existence of a fact of consequence more or less probable than it would otherwise be, then it can be said the trial court abused its discretion to admit that evidence. See id. Moreover, when it is clear to the appellate court that what was perceived by the trial court as common experience is really no more than the operation of

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a common prejudice, not borne out in reason, the trial court has abused its discretion. See id. In addition, Rule 403 of the Texas Rules of Evidence provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. See Tex. R. Evid. 403. The trial court has wide discretion in determining whether to admit or exclude evidence under Rule 403. See Montgomery,810 S.W.2d at 390. As long as the trial court operates within the bounds of that discretion, an appellate court should not disturb its decision. See id. In determining whether to exclude evidence under Rule 403, the trial court should consider the inherent tendency that some evidence may have to encourage resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it. See id. at 389-90. In ruling on objections under Rule 403, an appellate court should not reverse a trial court whose ruling was within the zone of reasonable disagreement. See Jones v. State,982 S.W.2d 386, 394 (Tex. Crim. App. 1998), cert. denied, 120 S.Ct. 444 (1999); Montgomery, 810 S.W.2d at 391. If the ruling was outside that zone, however, a reviewing court should not hesitate to reverse the trial court's determination. See Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). In the instant case, Roger contends that many of the checks included in the exhibit were not relevant because they were written before the first date of theft alleged in the indictment. The indictment alleged counts of theft beginning on May 30, 1995 through June 2, 1997. State's exhibit 48 contained approximately 1300 checks and many bank statements. Roger argues that approximately 506 checks and several bank statements were included in this exhibit that were outside the time frame of the indictment. In fact, only a small percentage of the entire exhibit was relied on by the State and actually admitted as distinct exhibits. Roger maintains that there was no testimonial evidence from any witness relating to the bulk of this exhibit and how it related to any specific theft allegations. Roger argues that the documents contained in the exhibit, which were outside the time-frame of the indictment, were not relevant because they had no tendency to make the existence of Roger's theft more or less probable than it would have been without the evidence. Thus, Roger claims, the exhibit was not admissible. In the alternative, Roger argues that even if this court determines that the exhibit has some tendency to make it more probable than not that Roger committed theft as alleged in the indictment, the exhibit was wholly unreliable because of its inherent tendency to confuse the issues. Confusion of the issues occurs when introduction of the contested evidence raises the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. See Reeves v. State, 969 S.W.2d 471, 490 (Tex. App.--Waco 1998, pet. ref'd), cert. denied, 119 S.Ct. 1462 (1999). Roger contends that this exhibit could have easily misled and confused the jury by potentially creating side issues. However, the checks written before May 30, 1995 that were included in State's exhibit 48 were relevant to show the limited amount of activity on Mrs. Golden's checking account prior to Roger and Connie gaining access to the account. After Roger and Connie obtained access to the account, the evidence shows that the amount of money withdrawn from the account was increased on a regular basis. Morever, State's exhibit 48 was relevant to show and compare the amount of money withdrawn from the account prior to and during the employment of Roger and Connie. In effect, State's exhibit 48 was relevant because it tended to make the existence of Roger's theft more probable than it would have been without the evidence. Additionally, the trial court's ruling admitting State's exhibit 48 did not fall outside the zone of reasonable disagreement and should not be disturbed. Because the trial court's ruling should not be disturbed, we overrule this issue. Brady Violation In his fifth issue, Roger complains that the trial court erred in denying his motion for new trial based on the State's failure to disclose relevant evidence beneficial to the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Roger contends that the State failed to disclose exculpatory evidence regarding health insurance that Roger purchased with money from Mrs. Golden's checking account. Under Brady, a prosecutor has an affirmative duty to turn over material, exculpatory evidence. See Brady v. Maryland,

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373 U.S. 83, 86 (1963); Ex Parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993). A due process violation occurs if: 1) the prosecutor failed to disclose evidence; 2) the evidence is favorable to the defendant; and 3) the evidence is material, such that there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the trial would have been different. See Kimes, 872 S.W.2d at 703. In the instant case, Roger filed a motion for new trial claiming that the State failed to disclose exculpatory evidence, based on the affidavits of Bonnie Richter ("Bonnie") and Warren Weir, Roger's trial lawyer ("Weir"). Bonnie, who is Mrs. Golden's granddaughter and Fred Richter's daughter, stated in her affidavit that the personal health insurance of the Porters and their three children was her idea. She felt that the Porters should be protected with insurance in case of an illness or emergency, and that if they had good health insurance, they would better be able to serve her grandmother's needs on a long-term basis. Bonnie claimed that it had been her recommendation that the Porters obtain health insurance for their family and that it was approved by her Uncle Lewis Petrosky, Mrs. Golden's brother. In addition, Bonnie declared that it was her belief that the proceeds from the sale of the RV were used to fund attorneys fees that the Porters felt responsible for on behalf of Mrs. Golden, as well as their own legal welfare. Weir's affidavit stated that he made numerous attempts to contact Bonnie Richter. He left messages at Bonnie's home on her answering machine. Bonnie never returned his telephone calls before or during the trial. Weir's first contact with Bonnie was after the verdict had been returned against Roger. Weir claimed that on October 20, 1998, at the sentencing hearing, Bonnie did provide an affidavit which was submitted to the court. Weir contended that the affidavit was unknown and unavailable to him at the time of trial, and that the failure to discover the evidence was not due to lack of diligence. Roger contends that the evidence Bonnie relayed to the prosecutor was beneficial and material to the defendants; in effect, it negated the essential element of unlawful appropriation. Although the State failed to disclose this evidence to Roger's trial lawyer, the information does not exculpate Roger. While the affidavits indicate that Bonnie and Uncle Lewis approved of the Porters purchase of health insurance, it does not indicate that Roger had legal authority to purchase the health insurance policy with Mrs. Golden's money. Whether Bonnie and Uncle Lewis approved of the expenditures is simply immaterial to whether Mrs. Golden consented to purchasing the health insurance. They were not Mrs. Golden's legal guardians nor did they have durable power of attorney to access Mrs. Golden's funds. Although this affidavit evidence may have been favorable to Roger, it was not material. Evidence withheld by a prosecutor is "material" if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. See Kimes, 872 S.W.2d at 702. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. See id. Here, the affidavit evidence withheld by the prosecution was not material because the outcome of the trial would not have been different. Because the affidavit evidence was not material or exculpatory, we overrule this issue. Having overruled each of Roger's issues, we affirm the judgment of the trial court. Alma L. L pez, Justice DO NOT PUBLISH

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