                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-187-CR


ISAAC TRANEIL MCDADE                                               APPELLANT
A/K/A ISSAC MCBRIDE
                                              V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      A jury convicted Appellant Isaac Traneil McDade a/k/a Isaac McBride of

theft of a motor vehicle valued at more than $20,000 but less than $100,000,

and the trial court sentenced McDade to twenty years’ confinement. In four

issues, McDade argues that the evidence is legally and factually insufficient to



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          … See T EX. R. A PP. P. 47.4.
support his conviction and that his due process rights were violated by an

impermissibly suggestive pretrial procedure used to identify him and by the

State’s failure to disclose material, exculpatory evidence before trial. We will

affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Zach McCoy and Thomas Kelley were remodeling a maternity store

located in Fort Worth on March 13, 2007. They were locking the entrance to

the store sometime between 4:30 and 5:00 p.m. when they noticed someone

drive off in Kelley’s truck, which Kelley had parked about forty yards away and

left running. Kelley chased the truck on foot briefly but was unable to catch up

to it. McCoy jumped into his vehicle, commenced following Kelley’s truck,

called 911, and explained to the 911 operator what was happening as he

pursued the truck. Kelley reported the incident to the police too.

      McCoy followed Kelley’s truck into an Albertson’s parking lot located near

the West Freeway, pulled in behind the truck, which the driver had just parked,

exited his vehicle, and confronted the driver. McCoy was able to get a look at

the driver, who he identified at trial as McDade. McCoy told McDade that he

was going to jail, but McDade struck McCoy several times, giving McCoy a

busted lip and five or six knots on his head.        McCoy was “completely

disoriented” and “knocked out” “for a minute or so” before he awoke to the

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911 operator calling him back. McCoy observed McDade running towards the

Albertson’s store; however, he did not see McDade enter the store.

      Officer White arrived at the Albertson’s parking lot soon after McCoy’s

confrontation with McDade. Officer White observed that McCoy had cuts on

his bloody face and was out of breath and “excited,” “pumped up,” and “pretty

shook up.” McCoy gave Officer White McDade’s description, which was a

black male, about 5'9" to 5'11" tall, and wearing a black shirt, black pants, and

white athletic shoes. Officer White advised other officers of the description and

called an ambulance.

      Officer Ochoa arrived at the scene about six minutes after Officer White.

He went to the Albertson’s to look for McDade. Officer Ochoa checked the

bathroom and saw a male in a stall matching McDade’s description. Officer

Ochoa exited the bathroom, called for assistance, and waited with two other

officers outside of the bathroom. After about ten minutes, the officers entered

the bathroom, observed McDade exiting the stall or washing his hands, and

detained him.

      In the meantime, officers had detained another individual at a nearby bus

stop, but McCoy, who was fully conscious and coherent, said without

hesitation after seeing him that the person was the wrong individual. About

twenty minutes after the ambulance arrived, officers showed up with McDade,

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whom McCoy identified without hesitation as the individual who had taken

Kelley’s truck. McDade had fresh-looking cuts and scrapes on his knuckles.

      A few days after the incident, Officer Barron showed McCoy a

photographic spread that included McDade’s photo. McCoy was unable to

identify McDade in any of the photos.         Officer Barron did not include this

information in the police report. Officer Barron testified that Kelley’s truck was

worth $25,500 at the time of the incident.

                       III. L EGAL AND F ACTUAL S UFFICIENCY

      McDade argues in this first two issues that the evidence is legally and

factually insufficient to support his conviction. However, he challenges the

sufficiency of the evidence only as it relates to his identification as the

individual responsible for the motor vehicle theft.

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).            This standard gives full play to the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate

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facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at

778. The trier of fact is the sole judge of the weight and credibility of the

evidence.   See T EX. C ODE C RIM. P ROC. A NN. art. 38.04 (Vernon 1979);

Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      We may not simply substitute our judgment for the fact-finder’s.

Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.

App. 1997).     Unless the record clearly reveals that a different result is

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appropriate, we must defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because resolution of the conflict “often

turns on an evaluation of credibility and demeanor, and those jurors were in

attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      Here, the evidence demonstrates that McCoy followed Kelley’s truck from

the location where it was taken all the way to the Albertson’s parking lot.

McCoy parked his vehicle behind Kelley’s truck and confronted McDade, who

had just started to walk away. McCoy spoke briefly with McDade, telling him

that he was going to jail and that he should just “hang out.” The prosecutor

asked McCoy if this was “the first time that [he] had really got to look at who

it was driving your friend’s pickup truck?”   McCoy responded, “Yes, sir, it

was.” About twenty minutes after the ambulance had arrived, McCoy identified

McDade as the individual responsible for taking Kelley’s truck.         McCoy

identified McDade without hesitation, stating, “that’s him,” four or five times

in rapid succession.      McCoy’s unwavering and unequivocal, positive

identification of McDade came after McCoy had told officers that another

individual that they had detained was not the person responsible for taking

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Kelley’s truck. McCoy also suffered injuries to his head from his confrontation

with McDade, and McDade had cuts and scrapes on his knuckles.

      In challenging the evidence supporting McCoy’s identification of him as

the person responsible for taking Kelley’s truck, McDade points to evidence that

McCoy was “completely disoriented” and “knocked out” briefly before he

awoke to the 911 operator calling him back. He also directs us to evidence

that McCoy was unable to identify McDade from the six-man photographic

spread he viewed two days later. McCoy, however, was fully conscious and

fully coherent when he identified McDade, and McCoy was unable to positively

identify McDade in the photographic spread—which included photographs that

all “looked pretty much identical” to him—because he was unsure which photo

was McDade’s, not because the photograph of the person who took Kelley’s

truck was not included in the spread. We are required to defer to the jury’s

determination of the weight to be given contradictory testimonial evidence

unless the record clearly reveals that a different result is appropriate. Johnson,

23 S.W .3d at 8. Considering the evidence above, the record here does not

clearly reveal that a different result is appropriate; we therefore defer to the

jury’s implied determination that McCoy correctly identified McDade as the

individual responsible for the motor vehicle theft.




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      Viewing the evidence in the light most favorable to the verdict, we hold

that the evidence is legally sufficient to support McDade’s conviction for theft

of a motor vehicle valued at more than $20,000 but less than $100,000. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

Moreover, viewing the evidence in a neutral light, we hold that the evidence is

factually sufficient to support McDade’s conviction. See Watson, 204 S.W.3d

at 414; Drichas, 175 S.W.3d at 799. Accordingly, we overrule McDade’s first

and second issues.

                  IV. IMPERMISSIBLY S UGGESTIVE IDENTIFICATION

      In his third issue, McDade argues that the procedure by which McCoy

first identified him as the individual who took Kelley’s truck—handcuffed,

surrounded by police officers, and presented to McCoy alone— was so

impermissibly suggestive as to give rise to a substantial likelihood of irreparable

misidentification. Consequently, he argues that his pretrial identification should

have been excluded because the procedure used denied him due process.

      To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983

S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

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1070 (1999). Further, the trial court must have ruled on the request, objection,

or motion, either expressly or implicitly, or the complaining party must have

objected to the trial court’s refusal to rule. T EX. R. A PP. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

      Here, McDade failed to assert an objection or file a motion challenging

both McCoy’s and Officer White’s testimony that McCoy identified McDade on

March 13, 2007, as the individual responsible for taking Kelley’s truck.

McDade has thus forfeited this complaint because he did not raise it at trial.

See T EX . R. A PP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249 at 265;

Brown v. State, No. 01-02-00856-CR, 2003 WL 1937207, at *4 (Tex.

App.—Houston [1st Dist.] Apr. 24, 2003, no pet.) (mem. op.) (not designated

for publication) (holding that appellant waived issue of whether identification

procedures used by police were impermissibly suggestive or whether in-court

identification of appellant was tainted by out-of-court procedures); Coffee v.

State, No. 03-98-00337-CR, 1999 WL 958966, at *2 (Tex. App.—Austin Oct.

21, 1999, no pet.) (not designated for publication) (holding that appellant failed

to preserve for appellate review arguments regarding in-court identification

stemming from impermissibly suggestive pretrial show-up).            We overrule

McDade’s third issue.




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                          V. E XCULPATORY E VIDENCE

      McDade argues in his fourth and final issue that his due process rights

were violated because the State committed a clear Brady violation by failing to

disclose material, exculpatory evidence before trial:     McCoy’s inability to

identify him in a photographic spread two days after the incident occurred.

      The State has an affirmative duty to disclose exculpatory evidence that

is material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83

S. Ct. 1194 (1963). The State’s duty to reveal Brady material attaches when

the information comes into its possession, not when it is requested. Thomas

v. State, 841 S.W .2d 399, 407 (Tex. Crim. App. 1992). To establish a due

process violation under Brady, a defendant must show the following: (1)

evidence was suppressed; (2) the suppressed evidence was favorable to the

defendant; and (3) the suppressed evidence was material to either guilt or

punishment.   Fox v. State, 175 S.W.3d 475, 490 (Tex. App.—Texarkana

2005, pet. ref’d).

      When the Brady material is discovered during trial, the initial inquiry is

whether the appellant was prejudiced by the delayed disclosure. Palmer v.

State, 902 S.W.2d 561, 565 (Tex. App.—Houston [1st Dist.] 1995, no pet.);

see also Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999)

(reasoning that to prevail on a Brady claim, the appellant must show that the

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State’s tardy disclosure prejudiced the appellant).    To show prejudice, the

appellant must show a reasonable probability that, had the evidence been

disclosed to the defense earlier, the result of the proceeding would have been

different. Little, 991 S.W.2d at 866. The disclosure of Brady material during

trial satisfies the requirements of due process “[i]f the defendant received the

material in time to put it to effective use at trial.” Palmer, 902 S.W.2d at 565.

A defendant’s conviction should not be reversed simply because the Brady

material was not disclosed as early as it might have and should have been. Id.

      Here, the undisclosed information was revealed early in the trial when the

prosecutor questioned McCoy, who was the first State’s witness to testify,

about the photographic spread that he viewed a few days after the incident.

McDade’s    attorney   cross-examined       McCoy   about   the   circumstances

surrounding his viewing of the photographic spread. Later in the trial, the State

questioned Officer Barron about the photographic spread too.          McDade’s

attorney cross-examined Officer Barron, who testified that he showed McCoy

the photographic spread and that he did not include the fact that McCoy was

unable to identify McDade’s photograph in the police report because McCoy

had already identified McDade on the scene a few days earlier. McDade’s

attorney further utilized the State’s failure to disclose McCoy’s inability to

identify McDade in the photographic spread during his closing argument.

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      The record thus shows that the undisclosed information came to light at

such a time that McDade was able to put it to effective use at trial.

Considering this and the fact that McCoy positively and unequivocally

identified McDade on a previous occasion, McDade has failed to show that

there was a reasonable probability that, had the evidence been disclosed earlier,

the result of the trial would have been different. See Little, 991 S.W.2d at

866. Moreover, McDade failed to request a continuance when McCoy testified

about the previously undisclosed information, which further tends to

demonstrate that the State’s delay in disclosing the photographic spread

information was not prejudicial. See Apolinar v. State, 106 S.W.3d 407, 421

(Tex. App.—Houston [1st Dist.] 2003), aff’d on other grounds, 155 S.W.3d

184 (Tex. Crim. App. 2005) (stating that a defendant’s failure to request a

continuance when Brady material is disclosed at trial waives error or indicates

that the delay in receiving the evidence was not truly prejudicial). We hold that

McDade’s due process rights were not violated by the State’s delay in

disclosing McCoy’s inability to identify McDade in a photographic spread.

Accordingly, we overrule McDade’s fourth issue.




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                             VI. C ONCLUSION

      Having overruled all of McDade’s issues, we affirm the trial court’s

judgment.




                                        DIXON W. HOLMAN
                                        JUSTICE

PANEL B: LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: June 5, 2008




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