                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                         No. 07-13-00049-CR


                          CAVIN ANTHONY LUDWIG, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 251st District Court
                                      Randall County, Texas
                    Trial Court No. 23,177-C; Honorable Ana Estevez, Presiding

                                           March 18, 2014

                                  CONCURRING OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Appellant, Cavin Anthony Ludwig, appeals from his conviction for the offense of

aggravated assault with a deadly weapon1 and resulting sentence of ten years

confinement.      Through his second issue, Appellant contends the State violated the

precepts of Brady v. Maryland.2             In overruling this issue the majority concludes

Appellant did not meet the requirements of proving a Brady violation because he failed

to demonstrate the State failed to disclose exculpatory evidence. While I concur in the



      1
          See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
      2
          See 373 U.S. 83, 105 S.Ct. 3375, 87 L.Ed. 2d 481 (1963).
ultimate disposition reached, I write separately to distinguish the basis upon which I

reach that conclusion.

       From the undisputed facts we know Officer Redden interviewed Tiffani Green

and she told him that she spoke to Appellant, apparently during the time-frame when he

was assaulting Annmarie Caine. We also know Green told Redden that she heard

laughter during that conversation.    What we don’t know for certain is whether Green

told Redden that the laughter came from a male or a female, or whether Redden told

Green not to mention the subject of laughter. The majority notes the trial court found

Officer Redden’s testimony to be credible and believable and then concluded there was

no failure to disclose “exculpatory Brady material.”

       To establish a claim under Brady, the defendant must demonstrate: (1) the State

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

withheld evidence is favorable to the defendant; and (3) the 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. Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim.

App. 2012). Favorable evidence is that which, if disclosed and used effectively, may

make the difference between conviction and acquittal. Id. As to materiality, “[t]he 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 a

constitutional sense, id. at 666, i.e., create a probability sufficient to undermine the

confidence in the outcome of the proceeding. Thomas v. State, 841 S.W.2d 399, 404

(Tex. Crim. App. 1992).




                                             2
       Here, it is undisputed the State failed to disclose the fact that Green told Redden

she heard laughter during her conversation with Appellant. Regardless of whether the

source of that laugher was undisputed, the withheld evidence could have been

favorable to Appellant because he could have used it to impeach both Redden and

Caine’s testimony.      Accordingly, I would conclude the State did fail to disclose

exculpatory evidence.

       That said, in order to find a reversible Brady violation one must still determine

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

outcome of the trial would have been different. Miles, 359 S.W.3d at 665. In that

regard, the Appellant’s inability to use the undisclosed evidence is of no significance

whatsoever in disputing the physical evidence supporting the jury’s conclusion that

Appellant stabbed and strangled Caine. At best the evidence might have been used to

argue Caine was not in fear of Appellant or she had somehow exaggerated the facts

and circumstances leading up to or even following the assault or Redden was more

interested in a conviction than the facts. To that extent, even if the evidence had been

disclosed and used effectively, it would not have been material because there is no

reasonable probability that the jury would have found the essential elements of the

indictment differently. Id.

                                            CONCLUSION

       Accordingly, because I conclude that the exculpatory evidence the State failed to

disclose was not material, I join the majority in affirming the conviction.

                                                         Patrick A. Pirtle
                                                             Justice

Publish.
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