11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

John Charles Barr

Appellant

Vs.                   No. 11-03-00030-CR -- Appeal from Collin County

State of Texas

Appellee

John Charles Barr entered an open plea of guilty to the offense of aggravated assault with a deadly weapon.  The trial court convicted him and assessed punishment at confinement for four years.  We affirm. 

In his sole issue on appeal, appellant contends that the trial court erred in failing to grant his motion for new trial because the State failed to turn over favorable Brady^[1] material -- the written statement of the complainant, Mark Earl Hixon.  We hold that appellant has waived this issue.

Under Young v. State, 8 S.W.3d 656, 667 (Tex.Cr.App. 2000), “a valid plea of guilty or nolo contendere ‘waives’ or forfeits the right to appeal a claim of error” if “the judgment of guilt was rendered independent of, and is not supported by, the error.”  By pleading guilty, appellant waived the issue that he asserts on appeal because he entered a valid guilty plea and because the judgment was rendered independent of, and is not supported by, the State’s failure to turn over Hixon’s statement prior to the trial date.  See Jacobs v. State, 80 S.W.3d 631, 632 (Tex.App. - Tyler 2002, no pet’n). 

Moreover, Hixon’s statement did not constitute Brady material.  After appellant entered his guilty plea, a punishment hearing was held during which Hixon testified.  During cross-examination, defense counsel was provided with the statement.  In the statement, Hixon stated that, as he was in the left lane of the highway accelerating in order to pass a truck, he noticed a jeep “right on [his] bumper.”  Appellant was driving the jeep.  Hixon indicated that he “stepped” on his brakes and then accelerated past the truck and moved back into the right lane.  Shortly thereafter, appellant drove up next to Hixon, rolled down his window, and pointed a large-caliber automatic handgun with a laser sight at Hixon’s face.  Appellant contends that Hixon’s admission that he “stepped” on the brakes was favorable and material.  We disagree.  Contrary to appellant’s assertion, Hixon’s act of stepping on the brakes did not constitute a defense to the subsequent aggravated assault, which appellant committed by pointing a deadly weapon at Hixon’s face.  Appellant=s sole issue is overruled. 

The judgment of the trial court is affirmed. 

W. G. ARNOT, III

CHIEF JUSTICE

October 23, 2003 

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.