                                  NO. 07-05-0026-CR
                                      07-05-0027-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               SEPTEMBER 29, 2006
                         ______________________________

                      RANDY JAMES THOMASON, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

              FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

          NO. B15431-0403, B15434-0403; HONORABLE ED SELF, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       In these companion appeals Randy James Thomason challenges his two

convictions for the felony offense of indecency with a child. The convictions resulted from

his prosecution under four separate indictments for similar offenses, each involving a

different victim. He presents the same two issues in each appeal alleging error arising

from the State’s failure to timely disclose exculpatory evidence. We affirm.
      Appellant and his wife began living with the wife’s relatives in the fall of 2003. Also

living in the house were minor sisters, AR and TR. On March 3, 2004 the father of AR and

TR informed Hale Center police officer Joe Vest his daughters and two other girls, DS and

MG, alleged appellant had engaged in sexual conduct with them. Vest briefly interviewed

the girls at a relative’s home then took their written and oral statements at the police

station. An audiotape was made of three of the four oral statements. Three of the girls

also were interviewed later by another interviewer and videotapes were made of these later

interviews. Separate indictments charged appellant with the offenses of aggravated sexual

assault of AR and indecency with a child against TR, DS and MG.


      In response to defense motions for discovery and disclosure of exculpatory

information filed in April 2004, the trial court issued its standard discovery order, which

included the requirement that the prosecution produce exculpatory material. The State

provided an initial response to the discovery motion the same month. At a June 2004

pretrial hearing defense counsel stated he had received copies of videotaped statements

of two complainants. Defense counsel also informed the trial judge one or two of the

victims made similar allegations against other people and he sought information on those

cases “to the limited extent that that would come under our Brady1 motion[.]” In July, the

defense obtained a continuance to provide time to obtain a replacement copy of the audio

recording and to review reports of the nurse examiner.




      1
          Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963).

                                             2
       According to defense counsel, he did not receive copies of the written statements

of AR, TR and DS, or the audio recording of AR, TR, and MG until the afternoon of January

10, 2005, the day before trial. During voir dire one of the venire members revealed DS had

accused her son of a similar crime. Appellant asserted objections to the State’s failure to

disclose that particular accusation and untimely disclosure of the written statements and

audio recording. He sought dismissal of the charges related to AR and DS. Based on the

prosecutor’s statement that the prior allegation by DS resulted in a guilty plea, the trial

judge found it was not exculpatory. With regard to the other information, the prosecution’s

response was that the State maintained an open file policy and had turned over “everything

that we have ever had” to the defense. He also represented the prosecution did not have

the tape recording until it was provided by the police department the same day it was given

to the defense.2 Alternatively, the prosecution argued the audio tape did not contain any

additional or different information, but it had no objection to the court ruling the recording

inadmissible due to untimely disclosure.       The court denied the motions to dismiss.

Appellant was found guilty of indecency with a child against AR and TR. He was acquitted

on the charges related to DS and MG.




       2
         Our disposition of appellant’s points does not require us to address the merits of
this argument. We note, however, that the trial court’s standard discovery order states that
it applies to information and materials in the possession of the prosecutor “or any of the
agencies of the State.” See Harm v. State, 183 S.W.3d 403, 406 (Tex.Crim.App. 2006)
(duty under Brady requires disclosure of favorable evidence known only to the police).

                                              3
       Appellant’s first point3 assigns error to the trial court’s failure to grant a

“postponement or continuance” when “‘Brady’ evidence” was provided immediately prior

to and during trial. His second point assigns error to the failure to grant a mistrial based

on violation of Brady. In Brady the U.S. Supreme Court recognized a constitutional right

to have the government disclose evidence in its possession which is material and

exculpatory. Brady, 373 U.S. at 87. See also Harm, 183 S.W.3d at 406 (stating rule).

Impeachment evidence also falls within the Brady rule. United States v. Bagley, 473 U.S.

667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Harm, 183 S.W.3d at 408. To

demonstrate reversible error for violation of Brady rights, a defendant must show (1) the

State failed to disclose evidence, regardless of the prosecutor's good or bad faith; (2) the

withheld evidence is favorable to the defendant; and (3) the withheld evidence is material,

that is, there is a reasonable probability that had the evidence been disclosed, the outcome

of the trial would have been different. Harm, 183 S.W.3d at 406. When exculpatory

evidence is not concealed, but disclosure is untimely, the defendant bears the burden to

show the delay resulted in prejudice. United States v. McKinney, 758 F.2d 1036, 1050 (5th

Cir. 1985); Wilson v. State, 7 S.W.3d 136, 146 (Tex.Crim.App. 1999). Prejudice is not

shown when the information is disclosed to the defendant in time for him to make effective

use of it at trial. McKinney, 758 F.2d at 1050; see Little v. State, 991 S.W.2d 864, 866

(Tex.Crim.App. 1999) (citing McKinney).




       3
       Because the briefs in both appeals present identical points of error, we refer to
each point in the singular.

                                             4
       Appellate counsel candidly acknowledged at oral argument that trial counsel’s

complaints at trial did not expressly include a motion for a continuance. We note also that

appellant’s brief contains no citation to the record where trial counsel sought a mistrial.

See Tex. R. App. P. 38.1(f), (h). While we have no duty to search the record for support

for an appellant’s argument, see Torres v. State, 979 S.W.2d 668, 671 (Tex.App.--San

Antonio 1998, no pet.), our examination of the portions containing trial counsel’s motions

for dismissal reveals he did not request a continuance, either before trial or in connection

with his motion to dismiss, or a mistrial. With exceptions not relevant here, a party may not

complain on appeal of the trial court’s failure to act on a request or objection not made to

that court. See Tex. R. App. P. 33.1(a). See also Dixon v. State, 2 S.W.3d 263, 273

(Tex.Crim.App. 1998) (op. on rehearing) (trial objection which does not comport with

appellate complaint is not preserved for review). This is a sufficient basis on which to

overrule appellant’s points.4


       Moreover, appellant’s argument fails to show the evidence disclosed on the eve of

trial was favorable or material, or that its late disclosure resulted in prejudice. The

evidence he identifies as exculpatory was the criminal history of the State’s witnesses, the

prior accusation by DS, and possibly the complainants’ written statements. Appellant’s


       4
         Several Texas courts have held the failure to seek a continuance on untimely
disclosure of exculpatory evidence waives any Brady violation. See, e.g., Taylor v. State,
93 S.W.3d 487, 502 (Tex.App.--Texarkana 2002, pet. ref’d). These opinions rely at least
in part on Yates v. State, 941 S.W.2d 357, 364 (Tex.App.--Waco 1997, pet. ref’d). A
majority of the Waco Court of Appeals recently rejected the rationale of Yates in Moore v.
State, 143 S.W.3d 305, 316 (Tex.App.–Waco 2004, pet ref’d) (op. on rehearing). Our
disposition of this appeal does not require us to address the State’s argument that
appellant waived any Brady violations for late-disclosed evidence by not seeking a
continuance.

                                             5
argument does not identify any state’s witness who had a criminal record which was not

disclosed. Nor does his argument explain how the report of DS of another offense

committed against her would be exculpatory where that report resulted in a guilty plea. Cf.

Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App. 2000) (addressing admissibility of

complainant’s previous false allegations of abuse by third person); Igo v. State, No. 07-02-

0484-CR (Tex.App.–Amarillo November 30, 2004, pet. granted) (assuming statement of

mother to police that daughter made false allegations in the past was subject to disclosure

under Brady). Finally, appellant’s argument ignores the fact he was acquitted of the charge

related to DS.


       Appellant’s argument that the written statements of the complainants were Brady

material is limited to the assertion they “contained substantial inconsistencies” and a

citation to the exhibits volume of the reporter’s record. The argument falls short of the

requirement of Rule of Appellate Procedure 38.1(h) for “a clear and concise argument for

the contentions made,” with appropriate citations to the record. In our review of the record

we note that during his argument to the trial court concerning the asserted Brady violations,

trial counsel emphasized that AR’s video-taped statement alleged two incidents while her

written statement and audio-taped statement recounted only one incident. As the State’s

brief points out, however, appellant’s counsel played AR’s audio-taped statement in front

of the jury and cross-examined her extensively about inconsistencies in her statements.

It thus appears appellant was able to make effective use of the materials delivered to

counsel shortly before trial. That conclusion is buttressed by appellant’s conviction of the

lesser included offense of indecency with a child against AR rather than the charged


                                             6
offense of aggravated sexual assault. We find that prejudice from an untimely disclosure

of the statements has not been shown. See Wilson, 7 S.W.3d at 146.


       Appellant has failed to show his due process rights were violated by the State’s

failure to disclose information required by Brady. For that reason, as well as for the reason

the record reflects no motion for a continuance or mistrial, we overrule appellant’s points

of error in each appeal and affirm the trial court’s judgments.




                                          James T. Campbell
                                              Justice




Do not publish.




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