                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00499-CR


JERRY LEE PITMAN                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                     ----------

         FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                     ----------

                                   OPINION

                                     ----------

                                INTRODUCTION

      Appellant Jerry Lee Pitman pleaded guilty to two counts of aggravated

sexual assault without an agreed punishment recommendation. The trial court

sentenced Appellant to two consecutive life sentences. In three related issues,

Appellant asserts that the trial court abused its discretion by denying his motion

for new trial, in which he alleged that the State’s failure to disclose documents

prior to his guilty plea and punishment hearing violated his due process and due
course of law rights.1 Appellant specifically argues that the State violated the

dictates of Brady v. Maryland by failing to disclose 3,000 pages of Child

Protective Services (CPS) records containing among other documents notes

from the complainant’s therapy sessions that were inconsistent with the

complainant’s and the therapist’s trial testimony.2 See 373 U.S. 83, 83 S. Ct.

1194 (1963). We affirm.

                               APPLICABLE LAW

      In Brady v. Maryland, the United States Supreme Court held “that the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” 373

U.S. at 87, 83 S. Ct. at 1196–97; see Pena v. State, 353 S.W.3d 797, 809 (Tex.

Crim. App. 2011). The court of criminal appeals has held that to find reversible

error under Brady, an appellant must show that (1) the State failed to disclose


      1
       Appellant asserts that “Texas provides constitutional protection consistent
with Brady et. al.,” therefore we do not separately address his rights under the
state constitution.
      2
        Appellant also briefly refers to article 40.001 of the code of criminal
procedure and the corresponding four-part newly-discovered evidence test for
obtaining a new trial. Appellant did not raise this issue in his new-trial motion or
at the new-trial hearing, however. Because Appellant complains on appeal that
the trial court erred by denying his motion for new trial, he must have raised his
newly-discovered evidence claim during the new-trial hearing to preserve the
complaint for appellate review. Because he did not, he has forfeited this
complaint on appeal. See Tex. R. App. P. 33.1; Keeter v. State, 175 S.W.3d
756, 759–61 (Tex. Crim. App.), cert. denied, 546 U.S. 852 (2005).


                                         2
evidence, regardless of the prosecution’s good or bad faith; (2) the undisclosed

evidence constitutes exculpatory or impeachment evidence that is favorable to

him, that is, if disclosed and used effectively, the evidence may make a

difference between conviction and acquittal; and (3) the evidence is material, that

is, it presents a reasonable probability that had the evidence been disclosed, the

outcome of the proceeding would have been different. Pena, 353 S.W.3d at 809,

812; Harm v. State, 183 S.W.3d 403, 406, 408 (Tex. Crim. App. 2006). We

analyze an alleged Brady violation “in light of all the other evidence adduced at

trial.” Hampton v. State, 86 S.W.3d 603, 612–13 (Tex. Crim. App. 2002).

      We review a trial court’s ruling on a motion for new trial for an abuse of

discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Holden

v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). We view the evidence in

the light most favorable to the trial court’s ruling and uphold it if it was within the

zone of reasonable disagreement.         Webb, 232 S.W.3d at 112.         We do not

substitute our judgment for that of the trial court, but rather we decide whether

the trial court’s decision was arbitrary or unreasonable. Id.; Holden, 201 S.W.3d

at 763.

                PROCEDURAL AND FACTUAL BACKGROUND

      In 2009, the State charged Appellant with sexually assaulting S.P., a child

younger than fourteen years of age, on two occasions in 2008. On August 9,

2010, Appellant waived a jury trial and pleaded guilty to the two counts without a




                                          3
recommendation on punishment.        Following Appellant’s plea, the prosecutor

advised that,

      initially during her disclosures the victim only disclosed two incidents
      of aggravated sexual assault, and that’s why the indictment has two
      counts. However, I spoke with the victim last Monday and she
      disclosed sexual misconduct on the part of [Appellant] from age nine
      to age twelve, and I immediately picked up the phone to call
      [defense counsel] who wasn’t available at the time, but I did send
      him an e-mail just to satisfy my Brady duties.

Appellant acknowledged receiving the email. The trial court stated that he would

grant Appellant a recess before his cross-examination of S.P. if he needed one.

      The next day, the State presented evidence that twelve-year-old S.P.

delivered a baby boy at a local hospital in May 2009. After initially claiming she

did not know who the baby’s father was, S.P. reluctantly told a nurse that the

baby’s father was her stepfather, Appellant.      The nurse contacted CPS, and

subsequent DNA testing confirmed that Appellant was the baby’s father.

      CPS Investigator Kathy Meyer testified that she met with S.P. at the

hospital after the baby’s birth and that S.P. described in detail—once to Meyer

and once to Meyer and Detective Alan Killingsworth—how Appellant had sexual

intercourse with her two times between June and September 2008 at their home,

where they lived with S.P.’s four half-siblings and Appellant’s parents and

brother.

      Ashlee Bowles testified that she was a CPS caseworker for this family and

that she met with Appellant in April 2010 while he was incarcerated. Appellant




                                         4
told Bowles that he was “cracked out” when the abuse occurred and that it never

would have happened “at least six times” if he had been sober.

      The next day, Appellant objected to any testimony by S.P. regarding any

sexual abuse not alleged in the two-count indictment, asserting that he had

requested notice of extraneous offenses a year earlier (which the State

disputed).   The prosecutor reiterated that she had not been aware of the

additional sexual abuse until the Monday before, when S.P. told her.           The

prosecutor explained that she had called Appellant’s counsel that same day, and

upon learning that he would be out of the office for a few days, she sent him an

email. Defense counsel, having previously acknowledged receiving the email,

stated that he did not think the State had acted in bad faith but that “the purpose

of the notice is to allow us to prepare” and that “if we know simply that there’s

sexual abuse and don’t know anything else, I don’t know how we can prepare.”

The trial court ruled that, in light of caseworker Bowles’s unobjected-to testimony

that Appellant had admitted to six incidents of abuse, he would allow S.P. to

testify to six incidents and that he would grant Appellant a continuance before

cross-examination if requested.3

      3
       We note that the trial court offered Appellant a continuance after Appellant
objected that he had not received 404(b), 37.07, and 38.37 notice of the
extraneous offenses. See Tex. R. Evid. 404(b); Tex. Code Crim. Proc. Ann. arts.
37.07 (West Supp. 2011), 38.37 (West Supp. 2011). The nondisclosure of 3,000
pages of CPS documents had not yet been discovered, therefore, it could not
have been the basis for a continuance. We do not find persuasive the State’s
assertion that Appellant failed to preserve error on his Brady claim for failing to
seek a continuance at this juncture.


                                        5
      S.P. testified that Appellant first touched her inappropriately when she was

nine years old.     When the prosecutor asked about other instances, S.P.

responded, “Well, I know that it happened almost all the time.” S.P. then testified

that Appellant first had sexual intercourse with her when she was eleven years

old. S.P. described the incident and explained that she was shocked the first

time but that as she got older she “just g[o]t used to it.” S.P. testified that a CPS

caseworker came to their house in 2008 (in response to a referral of five children

living in a dilapidated house) and that the caseworker told Appellant to stop

sleeping in the same bed as S.P. In response, Appellant began picking up S.P.

from school early and having intercourse with her in her grandmother’s bed when

no one was home but an uncle. S.P. testified that Appellant “put his penis inside

[her] privates” the same summer that she became pregnant and that the last time

was one week before the baby was born. The prosecutor then elicited testimony

from S.P. that she told “the CPS person” that it only happened twice because she

was scared, because she did not want anything bad to happen to her stepfather,

and because she did not want her brothers and sisters to get hurt and hate her.

      On cross-examination, Appellant elicited from S.P. that she gave a

November 2009 videotaped interview and that she did not tell the CPS

interviewer about the other sexual abuse incidents about which she had testified.

When Appellant tried to introduce the DVD as impeachment evidence, however,

the State objected that he had not laid the proper predicate, and the trial court

agreed.   Appellant then elicited testimony from S.P that she told both Kathy


                                         6
Meyer and Detective Killingsworth at the hospital that the sexual abuse

happened on only two occasions. He also elicited the following testimony:

            [Defense Counsel]: Q. And so then you — you went ahead
      and told them at that time that you were telling the truth; is that right?

            [S.P.] A. Yes, sir.

              Q. But today you’re saying that that really wasn’t the truth; is
      that right?

            A. Sir, it was the truth. But honestly, I didn’t want to tell
      everything because I don’t like to get people in trouble.

            ....

           Q. [Y]ou later had a chance to talk to CPS and did talk to
      CPS. Right?

            A. Yes, sir.

             Q. And you never explained any of this to them at that point in
      time, did you?

            A. No, sir.

When S.P. finished testifying, Appellant’s counsel asked for a short recess but

stated, “I don’t contemplate asking — I don’t want a continuance, I want to get it

done, but I don’t want to —.”

      When the hearing resumed, Laura Greuner testified that she was a

licensed clinical social worker and S.P.’s therapist. Greuner testified that she

diagnosed S.P. with Post-Traumatic Stress Disorder (PTSD) and explained that

PTSD “is an anxiety disorder that people get when they go through serious

traumas where [either their] life is threatened or the integrity of their body is



                                          7
threatened. And that’s how sexual abuse comes into it.” Greuner testified that

S.P. exhibited signs that were consistent with sexual abuse, such as anxiety and

nightmares.   Greuner testified that S.P. will have issues associated with her

stepfather’s sexual abuse for the rest of her life.        On cross-examination,

Appellant’s counsel elicited testimony from Greuner that S.P. would be able to

“have times when she enjoys a normal life just like she does now.”

      In his case in chief, Appellant presented evidence that he had an IQ of 77,

placing him in the borderline range of intellectual functioning; that he could be a

productive citizen if provided structure and supervision; that he had been a hard

worker at times; and that he had been a good father in many respects.

Appellant’s defense counsel argued the following in closing argument:

      [T]he evidence establishes without any doubt that he’s — that he’s
      guilty of this offense. So we don’t argue with that. That’s why we
      pled guilty. I think the evidence supports that.

      However, as the Court knows from my evidence in court, this late-
      breaking evidence of other bad things that’s just appeared recently
      the last week is something that I think that the Court in judging
      credibility can rightly give little weight to because I think — I’m
      suspicious anytime evidence appears just at the last minute. And I
      think the Court would be warranted in being suspicious of the
      evidence that appears at the last minute about other things that
      supposedly happened that weren’t known and weren’t talked about.

      [T]he testimony of Detective Killingsworth and Kathy Meyer and the
      nurse about what was said to them by [S.P.] and about these two
      experiences that Maureen has talked about is quite specific.

      ....

      When you have somebody at the time giving that — those details
      and giving it right after something dramatic like giving birth has


                                        8
      occurred, I think you’ve got reliability and trustworthiness in those
      statements to a certain extent, but I think you have — you have that
      especially when you have the details.

      This other late-breaking stuff, I would just ask the Court not to — not
      to give that — I’d ask don’t give it any weight. But for whatever it is,
      it certainly never appeared — none of the other State’s witnesses
      said anything about it, so I think it’s to be given little weight.

      One week later, the trial court found Appellant guilty on both counts and

sentenced him to two consecutive life sentences.         On September 16, 2010,

Appellant filed a motion for new trial, and the trial court held a hearing on October

1, 2010.

      At the motion for new trial hearing, Appellant’s counsel elicited testimony

from attorney Joe Steimel that Steimel represented Appellant in his civil parent-

child termination proceedings. Steimel testified that on August 5, 2010, during

Appellant’s punishment hearing, he received an email from an assistant district

attorney who represented CPS, stating that the “de-identified file” was ready.

Steimel testified that six or seven days later he picked up the records, that he

was told that there were 3,300 pages of documents, and that he had provided

those documents to Appellant shortly before Appellant filed his motion for new

trial on September 16, 2010.

      The lead prosecutor testified that the District Attorney’s Office had an open

file policy except that “as criminal district attorney we represent [CPS], and they

are separate and apart from the felony prosecutors or the misdemeanor

prosecutors.” The prosecutor testified that there were two proceedings pending



                                         9
against Appellant—the criminal proceeding and the CPS petition to terminate his

parental rights. She explained that she had “nothing to do with” the civil side of

the office representing CPS because “the civil side of our office that represents

the [CPS] has attorney/client privileges, and I certainly don’t want to divulge any

information that is exchanged between the attorney and [CPS].” The prosecutor

explained that she subpoenaed CPS records related to Appellant’s case directly

from the custodian of records for CPS and did not “go over to the other side of

the office to get any records,” “to cover [herself] with regard to Brady and [her]

duties as an attorney” and to “cover [herself] that [she] requested everything

that’s related to the criminal case to [her] office so that it [could] be viewed by the

defense.”

      The prosecutor testified that at some point Appellant’s counsel

subpoenaed essentially the same records and that a CPS representative called

and asked the prosecutor to provide Appellant’s counsel with a copy of the

documents already provided to the prosecutor by CPS.             Appellant’s counsel

agreed, and the prosecutor provided copies of all the CPS documents she had

received from CPS, which was approximately 150 pages.

                                     ANALYSIS

      Appellant contends that the trial court erred by denying his motion for new

trial. The basis of Appellant’s claim is that, after his sentencing hearing, he

discovered (based on documents received from his civil, termination attorney)

that the prosecution had failed to disclose 3,000 pages of impeaching and


                                          10
exculpatory documents (that were, at all pertinent times, located in the files of the

Criminal District Attorney’s Office) and that, therefore, the State violated the

dictates of Brady v. Maryland.4     Despite Appellant’s reference to exculpatory

materials, he does not identify or discuss any undisclosed exculpatory evidence.

Thus, we address only the impeachment value of the undisclosed documents.

      The due process clause requires the prosecution to disclose only evidence

that is (1) favorable to the defendant and (2) material either to guilt or

punishment. United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379

(1985); Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196–97.           Because

Appellant fails to demonstrate that the documents were material to his guilt or

punishment, the State was not obligated to disclose the documents to the

defense. We nonetheless briefly discuss the disclosure practices highlighted in

this case.




      4
       Citing Ex parte Lewis, Appellant asserts that “Texas recognizes that Brady
protects persons accused of crimes from the withholding of material exculpatory
and impeaching evidence even in the context of guilty pleas.” See 587 S.W.2d
697 (Tex. Crim. App. 1979). In United States v. Ruiz, however, the United States
Supreme Court held that neither Brady nor the federal constitution require
prosecutors to disclose impeachment information prior to entering into a plea
agreement with a defendant. 536 U.S. 622, 625–33, 122 S. Ct. 2450, 2453–57
(2002). Because the State does not raise Ruiz and because addressing Ruiz is
not necessary to the resolution of the issues as framed by the parties, we do not
decide the applicability of Ruiz to Appellant’s guilty pleas and three-day
punishment hearing. See Ex parte Masonheimer, 220 S.W.3d 494, 509 n.22
(Tex. Crim. App. 2007); id. at 513 n.20 (Keller, P.J., dissenting).


                                         11
                                  First Brady Prong

      Under Brady v. Maryland, the State has a constitutional duty to disclose to

a defendant material, exculpatory and impeachment evidence in its possession.

See Pena, 353 S.W.3d at 810. This duty also requires the State to learn of

Brady evidence known to others acting on the State’s behalf in a particular case.

Harm, 183 S.W.3d at 406 (citing Kyles v. Whitley, 514 U.S. 419, 437–38, 115 S.

Ct. 1555, 1567–68 (1995)); Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim.

App. 1997), cert. denied, 525 U.S. 873 (1998) (noting that Brady requires the

State to disclose material exculpatory evidence in the possession of police

agencies and other parts of the prosecutorial team). The State does not have

such a duty if the defendant was actually aware of the evidence or could have

accessed it from other sources. Pena, 353 S.W.3d at 810.

      Although we decide this appeal on a different issue, two items in the record

have given us pause. One of our concerns mirrors that expressed by the trial

court at the new-trial hearing:

             THE COURT: [I]’m looking at the subpoenas that the State
      issued for pseudonym records, [Appellant’s] records, and [his
      mother’s] records. For the record, they were filed with the clerk on
      June the 15th. Each one reads as follows: Please furnish instanter
      any and all records pertaining to the following individuals, and then
      there’s one for each of the three.

            Ms. [Prosecutor], do you have any reason why that broad
      request would not have included all records that CPS had? I mean,
      it doesn’t say criminal prosecution, it doesn’t say civil, it just names
      persons. I mean, it’s obvious just from the volume of records that
      you didn’t get everything you subpoenaed.            I mean, I don’t
      understand how that would — I mean, I think you subpoenaed them


                                         12
      and then the record indicates you gave [Appellant] just a copy of
      what you got. But —

            [The State]: Right. I haven’t compared the two. Although I’ve
      looked at the two —

            THE COURT: Right.

             [The State] — I haven’t compared them side by side. But my
      intent was to receive any and all records —

             THE COURT: Well, I mean, it’s obvious that your records that
      you and [defense counsel] worked off of was about an inch thick and
      that other is a banker’s box full of records.

            [The State]: That’s correct. But I don’t know what records
      pertained to the other four children that I didn’t reference in my
      subpoena or Baby [M] or any of that or the psychological or — I’m
      not quite sure.

            THE COURT: So you’re — are you — do you think State’s
      Exhibit No. 1 [the undisclosed 3,000 pages of materials] then
      contains records referring to all the children?

            [The State]: Yes.

             THE COURT: It doesn’t appear to me that [the CPS
      representative] honored the subpoena. So I would like in the future,
      rather than allowing CPS to provide the records by delivering them
      to an investigator, I want a CPS records custodian here to swear to
      the truth of it. And if it turns out it’s not true, there’s something the
      Court can do to enforce that. All right.

We are also concerned that the District Attorney’s Office believes that an office

policy—to keep its criminal case files “separate and apart” from its civil CPS case

files—always absolves it from its Brady duties. See Harm, 183 S.W.3d at 407

(“While we have held that CPS case workers may be law enforcement officers or

state agents in some circumstances, an examination of the entire record is



                                         13
required to determine whether a CPS employee was a state agent in a given

situation.”) (footnotes omitted). Again, however, resolution of these two matters

is not necessary to the disposition of this appeal.5 See Tex. R. App. P. 47.1.

                              Second Brady Prong

      To succeed on a Brady claim, Appellant must show that the evidence

withheld by the State was “favorable” to his case. Favorable evidence is that

which, if disclosed and used effectively, “may make the difference between

conviction and acquittal.” Pena, 353 S.W.3d at 811 (quoting Bagley, 473 U.S. at

676, 105 S. Ct. at 3375). Favorable evidence includes impeachment evidence,

which is evidence that disputes, disparages, denies, or contradicts other

evidence. Id. at 812; Harm, 183 S.W.3d at 408.

      While Appellant makes much of the fact that the undisclosed documents

total approximately 3,000 pages,6 he did not highlight any information or specific

documents within those 3,000 pages at the motion for new trial hearing or now

on appeal, except for thirty-three pages of Greuner’s therapy notes contained

within the CPS documents.      Other than the Greuner notes, Appellant simply

describes categories of documents contained within the voluminous records and


      5
       We also decline to address the State’s several arguments that Appellant
had independent access to the documents and that the State therefore had no
duty to disclose the challenged documents. The facts underlying the parties’
arguments are not entirely clear, and resolution of these arguments is not
necessary to the disposition of the appeal.
      6
       Appellant’s counsel offered the documents as an exhibit.


                                        14
does not point this court to any specific documents.7         Thus, we address

Appellant’s arguments in the context of what we will refer to as the Greuner

therapy notes. See Tex. R. App. P. 38.1(i); Segundo v. State, 270 S.W.3d 79,

106 & n.1 (Tex. Crim. App. 2008) (op. on reh’g) (reiterating that it is not an

appellate court’s task to wade through voluminous records to verify an

appellant’s claim), cert. denied, 130 S. Ct. 53 (2009); see generally Gomez v.

State, No. 02-07-00284-CR, 2009 WL 806906, at *1 (Tex. App.—Fort Worth

Mar. 26, 2009, pet. ref’d) (mem. op., not designated for publication) (overruling

certain issues as inadequately briefed because appellant failed to “point this

court to the specific documents on which he relies among the voluminous

documents contained in the two boxes of sealed documents submitted to and

held by this court”).

      Appellant asserts that the undisclosed documents are favorable because

they would have “strengthened the proposition that the extraneous instances of

sexual abuse did not occur at all” and that “[t]he Greuner therapy notes including

      7
        Appellant states that the undisclosed documents included “among other
things,”

      (1) [Dr. Greuner’s] therapy notes and reports, (2) documents relating
      to alleged child sexual abuse supposedly endured by [S.P.’s]
      siblings, (3) documents detailing post-arrest CPS investigations of
      the entire [P.] household, including [Appellant’s] brother DeWayne,
      (4) records of incriminating statements made by [Appellant] to
      Ashley Bowles, a CPS caseworker and trial witness, and (5)
      documents relating to the abuse of [M.P.], complainant’s younger
      sister, allegedly inflicted by her paternal uncle, DeWayne, who lived
      with both S.P. and [A]ppellant.


                                       15
statements by S.P. contradicted and called into question the extent of the abuse

testified to at trial and undermined the credibility of S.P. and Greuner.” Appellant

does not, however, discuss specific statements contained in the Greuner notes,

and he does not specify how he would have used the notes to challenge S.P.’s

and Greuner’s credibility.8 Indeed, our review of the notes indicates that, while

arguably not as detailed as S.P.’s testimony regarding the extraneous sexual

abuse, S.P.’s and Greuner’s testimonies were generally consistent with the

notes.9 Appellant does not point us to any portion of the notes that “dispute[d],

disparage[d], denie[d], or contradict[ed]” S.P. or Greuner’s testimony. To the

extent Appellant focuses on the omission of statements, he does not further

explain or point us to any specific portion of the notes that support his argument.

Further, Appellant does not explain how Greuner’s therapy notes would have

been admissible to impeach S.P. or Greuner; indeed, S.P. acknowledged that

she had not told CPS about Appellant’s ongoing sexual abuse. See Tex. R.

Evid. 613;10 see Pena, 353 S.W.3d at 809 (“[W]e require that the evidence


      8
       As the State points out, Appellant did not ask to see any of Greuner’s
notes related to her direct-examination testimony. See, e.g., Tex. R. Evid. 612,
613, 615.
      9
       For instance, Greuner states in one set    of notes from September 2009
that S.P. “talked about her dad. She would beg    him to stop molesting her. She
was afraid and told him so. She kicked him        once and he did stop so she
wonders why she couldn’t make him stop. . . .     She said on one occasion she
awoke and he was strangling her.”
      10
          Rule 613(a) provides:


                                        16
central to the Brady claim be admissible in court.”); Lempar v. State, 191 S.W.3d

230, 240–41 (Tex. App.—San Antonio 2005, pet. ref’d) (“The State’s duty under

Brady does not extend to turning over evidence that would not be admissible at

trial.”). Thus, Appellant has not established that the undisclosed documents are

favorable.

      Even assuming that the undisclosed documents contained some

impeachment value, however, Appellant’s claims still fail because he is unable to

satisfy the remaining materiality requirement.

                               Third Brady Prong

      To succeed in his Brady claim, Appellant must also show that that there is

a reasonable probability that, had the evidence been disclosed to the defense,

the result would have been different. Ex parte Adams, 768 S.W.2d 281, 291

(Tex. Crim. App. 1989). Appellant asserts that “[t]he test applied to a defendant

who enters a guilty plea is . . . whether the failure to produce the hidden material

would have given rise to a reasonable probability that but for the failure to



             In examining a witness concerning a prior inconsistent
      statement made by the witness, whether oral or written, and before
      further cross-examination concerning, or extrinsic evidence of, such
      statement may be allowed, the witness must be told the contents of
      such statement and the time and place and the person to whom it
      was made, and must be afforded an opportunity to explain or deny
      such statement. . . . If the witness unequivocally admits having
      made such statement, extrinsic evidence of same shall not be
      admitted.

      Tex. R. Evid. 613(a) (emphasis added).


                                        17
disclose the Brady material the defendant would not have entered the plea that

he did.” See Tate v. Wood, 963 F.2d 20 (2nd Cir. 1992). Appellant asserts

generally that the undisclosed documents were material because he “never

would have pursued the course and strategy that he did had he known of the

undisclosed material.”11

      We note that while Appellant characterizes his criminal proceeding as a

guilty plea for purposes of this materiality test, he later claims that his case “was

in all other respects a contested punishment hearing.”12             To the extent

Appellant’s criminal proceeding can be characterized as a guilty plea, we

determine whether he would not have entered a plea but would have gone to trial

because of the objective likelihood of being found not guilty. See Tate, 963 F.2d

at 24. “[T]he inquiry is an objective one that is resolved largely on the basis of

the persuasiveness of the withheld evidence.” Id. To the extent Appellant’s

punishment hearing was more like a trial, we determine whether in light of all the


      11
         Appellant specifically argues that if the documentary evidence had been
available and if he had known S.P. and Greuner would accuse him of additional
misbehavior, he never would have waived his right to elect the jury to assess
punishment, he may have testified in his own behalf, he may have called other
family members or third-party witnesses, he could have investigated and called
alibi witnesses, and he may have changed his plea in order to refute culpability
and allow a jury to decide his fate.
      12
         Citing Ex parte Lewis, Appellant asserts that in the context of Brady
violations after guilty pleas, the court of criminal appeals has “found that the Due
Process Clause and Texas’ due-course-of-law provision both operate to support
the granting of a new trial under comparable procedural circumstances.” See
587 S.W.2d at 700. Ex parte Lewis, however, involved the failure to disclose
exculpatory evidence. Id.; see Ruiz, 536 U.S. at 633, 122 S. Ct. at 2457.

                                         18
evidence, it is reasonably probable that the outcome of the proceeding would

have been different had the prosecutor made a timely disclosure. See Pena, 353

S.W.3d at 812. A reasonable probability is one that is sufficient to undermine

confidence in the outcome of the trial. Harm, 183 S.W.3d at 409. “The mere

possibility that an item of undisclosed information might have helped the defense,

or might have affected the outcome of the trial, does not establish ‘materiality’ in

the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109–10, 96 S. Ct.

2392, 2400 (1976); see Pena, 353 S.W.3d at 812. Ultimately, Appellant does not

demonstrate that the undisclosed impeachment evidence was materially

significant to either his guilty plea or to the outcome of his punishment hearing.

        DNA testing confirmed that Appellant impregnated his twelve-year-old

stepdaughter S.P.     Appellant’s trial counsel argued during the punishment

hearing that “the evidence establishes without any doubt that [Appellant’s] — that

he’s guilty of this offense. So we don’t argue with that. That’s why we pled

guilty. I think the evidence supports that.” While Appellant made this argument

before he was aware of the undisclosed materials, he does not demonstrate

objectively how or why his knowledge that S.P. did not disclose to CPS workers

that she suffered ongoing sexual abuse by Appellant would have changed his

plea.    Thus, there is not a reasonable probability that but for the failure to

produce the undisclosed information he would not have entered the plea but

instead would have insisted on going to trial.




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      Further, S.P. testified to the impeaching facts; that is, she admitted on

direct and cross-examination that she had omitted details of the extraneous

incidents of sexual abuse when talking to CPS. “If the witness acknowledges

impeaching facts during [her] testimony, nondisclosed information bearing on

those facts is not ‘material’ under Bagley.”     42 George E. Dix & John M.

Schmolesky, Texas Practice Series: Criminal Practice & Procedure ' 27:19 (3d

ed. 2011) (citing Etheridge v. State, 903 S.W.2d 1, 20 (Tex. Crim. App. 1994)).

Additionally, Appellant emphasized in his closing argument to the trial court that

S.P.’s “late-breaking” testimony regarding the extraneous acts of sexual abuse

should be viewed with suspicion and given little weight. See Wyatt v. State, 23

S.W.3d 18, 27 (Tex. Crim. App. 2000) (holding that undisclosed pretrial

statement by victim’s mother to investigator that defendant had not previously

hurt the victim and would not sexually assault him was not material because the

mother testified on direct examination to “materially the same” information and

therefore the defendant was able to cross-examine her about the exculpatory

facts); Saldivar v. State, 980 S.W.2d 475, 486 (Tex. App.—Houston [14th Dist.]

1998, pet. ref’d) (holding that while defendant could have offered witness’s theft

conviction, if disclosed, to impeach her credibility with jurors, witness’s

inconsistent statements permitted defendant “to accomplish the same goal on

cross-examination”).

      In light of the DNA results, the trial court could have understandably found

S.P. credible when she testified that the sexual abuse happened more than twice

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and when she explained why she did not report the ongoing abuse. In turn, the

trial court could have reasonably found that S.P.’s earlier omissions regarding the

ongoing sexual abuse did not undermine confidence in the outcome of the

proceeding. Moreover, S.P.’s credibility was strengthened by the testimony of

CPS caseworker Ashlee Bowles that Appellant recounted to her that he was

“cracked out” when the abuse occurred and that it never would have happened

“at least six times” if he had been sober.      Thus, there is not a reasonable

probability that, had the evidence been disclosed, the result of the proceeding

would have been different.

      For the above reasons, we hold that the trial court did not abuse its

discretion by denying Appellant’s motion for new trial, and we overrule

Appellant’s three issues.

                                   Conclusion

      Having overruled Appellant’s three issues, we affirm the trial court’s

judgments.


                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

PUBLISH

DELIVERED: June 21, 2012




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