                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-16-00376-CR

JESSE GALINDO DELAFUENTE,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 19th District Court
                             McLennan County, Texas
                            Trial Court No. 2016-419-C1


                          MEMORANDUM OPINION


       Appellant, Jesse Galindo Delafuente, was convicted of evading arrest with a

vehicle. See TEX. PENAL CODE ANN. § 38.04 (West 2016). On original submission, this

Court dismissed appellant’s appeal based on his failure to timely file his notice of appeal

corresponding to a judgment granting shock probation and based on an analysis that the

judgment granting shock probation mooted the original judgment of conviction. See

generally Delafuente v. State, No. 10-16-00376-CR, 2018 Tex. App. LEXIS 4765 (Tex. App.—
Waco June 27, 2018) (mem. op., not designated for publication), rev’d, 570 S.W.3d 729

(Tex. Crim. App. 2019). The Court of Criminal Appeals reversed this Court’s decision,

holding that the granting of shock probation does not undermine the validity of a timely

filed notice of appeal from the original conviction.        Delafuente, 570 S.W.3d at 729.

Accordingly, this case was remanded to this Court for consideration of appellant’s issues.

Id. at 731.

        Both appellant and the State have declined to file new appellate briefs in this

matter. Instead, they rely on the briefs filed on original submission. In his original brief,

appellant contended that: (1) the operative statute in this case—section 38.04 of the Penal

Code—is unconstitutional due to the ambiguity of the term “flee”; (2) the trial court erred

by denying him the right to be heard during voir dire and cross-examination of the State’s

sole witness; and (3) the trial court abused its discretion by denying his motion for new

trial based on the purported unlawful withholding of evidence. Because we overrule all

of appellant’s issues on appeal, we affirm.

                I.    CONSTITUTIONALITY OF SECTION 38.04 OF THE PENAL CODE

        In his first issue, appellant contends that section 38.04 is, on its face,

unconstitutionally vague and overbroad. Appellant also asserts an as-applied challenge

to section 38.04 on appeal. The record reflects that appellant made a single pre-trial

objection to the constitutionality of section 38.04, asserting a facial challenge and that the




Delafuente v. State                                                                     Page 2
statute is vague and overbroad. Appellant did not assert an as-applied challenge to the

constitutionality of section 38.04 in the trial court.

        Constitutional challenges to a statute are generally forfeited by the failure to object

at trial. Curry v. State, 910 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995); see Mendez v.

State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). The constitutionality of a statute as

applied must be raised in the trial court to preserve error. Curry, 910 S.W.2d at 496; see

Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) (noting the “well-

established requirement that appellant must preserve an ‘as applied’ constitutional

challenge by raising it at trial”). Further, a defendant may not raise a facial challenge to

the constitutionality of a statute for the first time on appeal. Kareney v. State, 281 S.W.3d

428, 434 (Tex. Crim. App. 2009).

        As noted above, appellant did not raise an as-applied challenge to section 38.04 in

the trial court; accordingly, we cannot say that he has preserved this complaint. See Curry,

910 S.W.2d at 496; see also Flores, 245 S.W.3d at 437 n.14. However, because he did assert

a facial challenge to the statute in the trial court, we conclude that his arguments in

support of his facial challenge to the constitutionality of the statute were preserved. See

Kareney, 281 S.W.3d at 434.

        With regard to his facial challenge, appellant argues that the statute is overbroad

and vague. “Whether a statute is facially constitutional is a question of law that we

review de novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We presume that


Delafuente v. State                                                                      Page 3
a statute is valid and that the legislature did not act unreasonably or arbitrarily. Id. at 14-

15. “The burden normally rests upon the person challenging the statute to establish its

unconstitutionality.” Id. at 15. In the absence of contrary evidence, we will presume that

the legislature acted in a constitutionally-sound fashion. Rodriguez v. State, 93 S.W.3d 60,

69 (Tex. Crim. App. 2002). The statute must be upheld if a reasonable construction can

be ascertained that will render the statute constitutional and carry out the legislative

intent. Shaffer v. State, 184 S.W.3d 353, 363 (Tex. App.—Fort Worth 2006, pet. ref’d); see

Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979). When an appellant

challenges a statute as both unconstitutionally overbroad and vague, we address the

overbreadth challenge first. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982); Duncantell v. State, 230 S.W.3d

835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).

        “An overbreadth attack on a statute is recognized only in the context of a First

Amendment challenge.” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth

2008, no pet.) (citing United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697

(1987)); see State v. Johnson, 475 S.W.3d 860, 866 (Tex. Crim. App. 2015) (“And in Secretary

of Maryland v. Joseph H. Munson Co., the United States Supreme Court made it clear that

the overbreadth doctrine is in fact a part of substantive First Amendment law . . . .”

(internal footnote omitted)). Because appellant does not invoke the First Amendment in

this issue, and because he does not explain how the statute could implicate protected


Delafuente v. State                                                                      Page 4
conduct or speech, we reject appellant’s overbreadth challenge to section 38.04. See

Goyzueta, 266 S.W.3d at 131; see also Johnson, 475 S.W.3d at 866.

        In light of the above, the remaining portion of appellant’s first issue is his

argument that section 38.04 is facially unconstitutionally vague.           With respect to

vagueness, statutes are not necessarily unconstitutionally vague because the words or

terms employed in the statute are not specifically defined. See Engelking v. State, 750

S.w.2d 213, 215 (Tex. Crim. App. 1988); see Dahl v. State, 707 S.W.2d 694, 700 (Tex. App.—

Austin 1986, pet. ref’d) (“That the statute is confusing is not enough to render it

unconstitutional.”); see also Briggs v. State, 740 S.W.2d 803, 806 (Tex. Crim. App. 1987)

(“An enactment is not vague merely because it is imprecise.” (internal citations &

quotations omitted)). When a statute does not define the words used therein, we give the

words their plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999);

see also TEX. GOV’T CODE ANN. § 311.011(a) (West 2013) (“Words and phrases shall be read

in context and construed according to the rules of grammar and common usage.”). A

statute will be invalidated if it fails to give a person of ordinary intelligence a reasonable

opportunity to know what conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496,

499 (Tex. Crim. App. 2006).

        Moreover, because appellant makes a facial challenge to the statute, he must prove

that the statute is unconstitutional in every application, and that the statute could never

be constitutionally applied to any defendant under any set of facts or circumstances. See


Delafuente v. State                                                                     Page 5
State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); Santikos v. State, 836 S.W.2d

631, 633 (Tex. Crim. App. 1992). Furthermore, if we determine that there is a reasonable

construction which will render the statute constitutional, we must uphold the statute.

Tarlton v. State, 93 S.W.3d 168, 175 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

        Fatal to his facial vagueness challenge, appellant cites to numerous cases—many

of which we cite to—that performed a sufficiency analysis of the evading statute and, as

appellant concedes, “[u]nder such circumstances, the behavior of the accused conforms

with the plain meaning of the word ‘flee’ as that term is defined by the dictionary.” See

Smith v. State, 483 S.W.3d 648, 654-55 (Tex. App.—Houston [14th Dist.] 2015, no pet.);

Reyes v. State, 465 S.W.3d 801, 805-06 (Tex. App.—Eastland 2015, pet. ref’d); Jenkins v.

State, 454 S.W.3d 712, 713-15 (Tex. App.—Corpus Christi 2015, no pet.); see also Blake v.

State, No. 06-11-00097-CR, 2012 Tex. App. LEXIS 926, at **18-21 (Tex. App.—Texarkana

Feb. 2, 2012, pet. ref’d) (mem. op., not designated for publication); Tolbert v. State, No. 08-

10-00096-CR, 2011 Tex. App. LEXIS 6842, at **9-10 (Tex. App.—El Paso Aug. 26, 2011, pet.

ref’d) (mem. op., not designated for publication); Valencia v. State, 13-10-00201-CR, 2011

Tex. App. LEXIS 3815, at **20-22 (Tex. App.—Corpus Christi May 19, 2011, no pet.) (mem.

op., not designated for publication); Holloman v. State, No. 06-10-00113-CR, 2011 Tex. App.

LEXIS 1954, at **5-7 (Tex. App.—Texarkana Mar. 18, 2011, no pet.) (mem. op., not

designated for publication); Garcia v. State, No. 13-07-00566-CR, 2010 Tex. App. LEXIS

826, at **3-6 (Tex. App.—Corpus Christi Feb. 4, 2010, no pet.) (mem. op., not designated


Delafuente v. State                                                                      Page 6
for publication). This concession demonstrates that there are circumstances in which

section 38.04 can be constitutionally applied and that the term “flee” is not so vague that

it fails to give a person of ordinary intelligence a reasonable opportunity to know what

conduct is prohibited. See Rosseau, 396 S.W.3d at 557; Holcombe, 187 S.W.3d at 499;

Santikos, 836 S.W.2d at 633; see also Tarlton, 93 S.W.3d at 175. Therefore, based on the

foregoing, we reject appellant’s constitutional challenges to section 38.04. See Ex parte Lo,

424 S.W.3d at 14-15. We overrule his first issue.

                            II.    APPELLANT’S RIGHT TO BE HEARD

        In his second issue, appellant argues that he was unfairly denied the right to be

heard regarding appellant’s intent. In particular, appellant asserts that his theory of the

case was that his actions did not demonstrate an intent to “flee”; however, the trial court

denied him the opportunity during voir dire and on cross-examination of the State’s sole

witness to explore other viable reasons for appellant’s failure to immediately pull over to

be considered by the jury.

        We first address appellant’s complaint about voir dire. Specifically, appellant

argues that he was not allowed to explore the beliefs of the jury regarding the elements

of intent and flight.

        The trial court has broad discretion of selecting a jury. Without the trial
        court’s ability to impose reasonable limits, voir dire could go on
        indefinitely. Thus, we leave to the trial court’s discretion the propriety of a
        particular question and will not disturb the trial court’s decision absent an
        abuse of discretion. A trial court abuses its discretion when it prohibits a
        proper question about a proper area of inquiry. A question is proper if it
Delafuente v. State                                                                       Page 7
        seeks to discover a juror’s views on an issue applicable to the case.
        However, an otherwise proper question is impermissible if the question
        attempts to commit the juror to a particular verdict based on particular
        facts. In addition, a trial judge may prohibit a voir dire question that is so
        vague or broad in nature as to constitute a global fishing expedition.

Sells v. State, 121 S.W.3d 748, 755-56 (Tex. Crim. App. 2003) (internal footnotes omitted).

        In this case, the State objected that appellant asked the venire improper

commitment questions regarding intent and flight.

        A commitment question is one that commits a prospective juror to resolve,
        or refrain from resolving, an issue a certain way after learning a particular
        fact. See Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). Often
        a commitment question requires a “yes” or “no” answer, and the answer
        commits the juror to resolve an issue in a particular way. Id. Not all such
        questions are improper, however. Id. at 181. Where the law requires a
        certain type of commitment from jurors, such as considering the full range
        of punishment, an attorney may ask prospective jurors to commit to
        following the law in that regard. Id.

Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012); see Standefer, 59 S.W.3d at

182 (“So, the inquiry for improper commitment questions has two steps: (1) Is the

question a commitment question, and (2) Does the question include facts—and only those

facts—that lead to a valid challenge for cause? If the answer to (1) is ‘yes’ and the answer

to (2) is ‘no,’ then the question is an improper commitment question, and the trial court

should not allow the question.”).

        In the instant case, the trial court allowed appellant ten pages of voir dire about

intent, and it was not until appellant asked if the officer says, “Stay . . . Jesse leaves the

space . . . [h]is intention is not to run away, hide from the officer. His intention is to get


Delafuente v. State                                                                      Page 8
somewhere safe . . . [d]o you believe that that is evading?” that the State objected. This

question asked the venire to commit to whether the hypothetical factual situation

involving appellant would constitute evading. This was improper because it attempted

to commit the prospective jurors to a particular verdict based on particular facts. See Sells,

121 S.W.3d at 755-56; Lydia v. State, 109 S.W.3d 495, 499 (Tex. Crim. App. 2003)

(concluding that the question, “Do each of you feel as though you could evaluate a

witness and his testimony and decide if he’s being truthful without automatically

dismissing his testimony because of some criminal history?,” was an improper

commitment question because it asked the jurors to resolve witness credibility, which

was an issue in the case, based on the knowledge that the witness had a criminal history

(particular fact)); Standefer, 59 S.W.3d at 181; see also Wingo v. State, 143 S.W.3d 178, 186

(Tex. App.—San Antonio 2004), aff’d, 189 S.W.3d 270 (Tex. Crim. App. 2006) (concluding

that the question, “Do you believe there’s anything wrong with putting false information

in a police report?,” was an improper commitment question because it committed the

venire regarding culpability based on a specific fact—an officer putting false information

in a police report).

        Next, appellant complains about the trial court sustaining the State’s objection

during cross-examination of the State’s lone witness, Officer Kevin Carter of the Lacy

Lakeview Police Department, but formerly of the Waco Police Department. In particular,

the following exchange is the subject of appellant’s complaint:


Delafuente v. State                                                                     Page 9
        [Defense counsel]: In Texas[,] we train officers because just the smell of
                           alcohol alone—

        [Prosecutor]:        Judge, I’m going to object at this point to relevance.
                             We’ve gone over why he didn’t make the DWI arrest.

        [Defense counsel]    Judge, the issue here—

        THE COURT:           Sustain the objection. These facts are already before
                             the jury. He said it wasn’t a DWI investigation. Let’s
                             ask questions about this trial.

        We review the trial court’s admission or exclusion of evidence for an abuse of

discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial

court’s ruling is within the zone of reasonable disagreement, there is no abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). We consider the

ruling in light of what was before the trial court at the time the ruling was made and

uphold the trial court’s decision if it lies within the zone of reasonable disagreement.

Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009).

        The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This

procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380

U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273 S.W.3d

671, 680 (Tex. Crim. App. 2008).




Delafuente v. State                                                                     Page 10
        The Sixth Amendment protects the defendant’s right not only to confront the

witnesses against him, but to cross-examine them as well. See Davis v. Alaska, 415 U.S.

308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 347 (1974). “The exposure of a witness’ motivation

in testifying is a proper and important function of the constitutionally protected right of

cross-examination.” Davis, 415 U.S. at 316-17; 94 S. Ct. at 1110. The accused is entitled to

great latitude to show a witness’ bias or motive to falsify his testimony. See Hodge v. State,

631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).

        However, the right of cross-examination is not unlimited. The trial court retains

wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van

Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 674 (1986). The trial court

must carefully consider the probative value of the evidence and weigh it against the risks,

if admitted. See Hodge, 631 S.W.2d at 758. These risks include “the possibility of undue

prejudice, embarrassment or harassment to either a witness or a party, the possibility of

misleading or confusing a jury, and the possibility of undue delay or waste of time.” Id.;

see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000); see also Chambers v. State, 866

S.W.2d 9, 27 (Tex. Crim. App. 1993). Moreover, “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, or to whatever extent, the defense might wish.” Delaware v. Fensterer, 474

U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 15 (1985) (emphasis in original); see Walker v. State,

300 S.W.3d 836, 844-45 (Tex. App.—Fort Worth 2009, pet. ref’d).


Delafuente v. State                                                                       Page 11
        In this case, appellant was not charged with or arrested for driving while

intoxicated; rather, he was charged with evading arrest with a motor vehicle.

Furthermore, there was no dispute regarding the legality of the initial detention in this

case for stopping past the designated stopping point at a stop light. Because appellant

was not investigated for driving while intoxicated, and because Officer Carter

acknowledged that he did not investigate appellant for driving while intoxicated,

questions regarding the training of officers of intoxication offenses are not relevant to

whether appellant evaded arrest with a motor vehicle and, thus, would have caused

undue delay.1 See TEX. R. EVID. 401 (providing that evidence is relevant if it has any

tendency to make more probable or less probable the existence of a consequential fact);

Webb v. State, 991 S.W.2d 408, 418 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (noting

that “[i]f the trial court determines the evidence is irrelevant, the evidence is absolutely

inadmissible and the trial court has no discretion to admit it” and that “[q]uestions of

relevance should be left largely to the trial court and will not be reversed absent an abuse

of discretion”); see also Van Arsdell, 475 U.S. at 678, 106 S. Ct. at 1434-35; Lopez, 18 S.W.3d

at 222; Chambers, 866 S.W.2d at 27. Accordingly, we cannot say that the trial court abused

its discretion in sustaining the State’s objection to this line of questioning. See De La Paz,

279 S.W.3d at 343; Prible, 175 S.W.3d at 731.



        1It is worth noting that, prior to the line of questioning complained about by appellant, the
Reporter’s Record reflects more than four pages of cross-examination allowed by the trial court about
driving-while-intoxicated offenses.

Delafuente v. State                                                                          Page 12
        And finally, appellant asserts that the trial court abused its discretion by sustaining

the State’s objection based on speculation to appellant’s question to Officer Carter about

appellant’s arrest. Specifically, appellant complains that the trial court should not have

sustained the State’s objection to the following question: “His intent, therefore, wouldn’t

be to get away from you?” This question required Officer Carter to speculate as to

appellant’s intent and, thus, was impermissible because it was not based on Officer

Carter’s personal knowledge. See Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App.

1997) (“It is impossible for a witness to possess personal knowledge of what someone else

is thinking. The individual is the only one who knows for certain the mental state with

which he is acting. Therefore, if the trial court determines that a proffered lay-witness

opinion is an attempt to communicate the actual subjective mental state of the actor, the

court should exclude the opinion because it could never be based on personal

knowledge.” (emphasis in original) (internal citations omitted)). We therefore cannot

conclude that the trial court abused its discretion in sustaining the State’s objection to this

question. See id. And based on the foregoing, we overrule appellant’s second issue.

                         III.    APPELLANT’S MOTION FOR NEW TRIAL

        In his third issue, appellant complains that the trial court abused its discretion by

denying his motion for new trial based on the alleged unlawful withholding of evidence

that purportedly showed that Officer Carter was previously terminated from the Waco




Delafuente v. State                                                                     Page 13
Police Department for conduct which was allegedly similar to some of the facts of this

offense.

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

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

conducting our review, we view the evidence in the light most favorable to the trial

court’s ruling and uphold the ruling if it is within the zone of reasonable disagreement.

Id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). “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. “Thus, a trial court abuses its

discretion in denying a motion for new trial only when no reasonable view of the record

could support the trial court’s ruling.” Id. (citing Charles v. State, 146 S.W.3d 204, 208 (Tex.

Crim. App. 2004)).

        The authority which provides many of the grounds for which a trial court must

grant a new trial are listed in Texas Rule of Appellate Procedure 21.3. See TEX. R. APP. P.

21.3; see also State v. Barragan, 421 S.W.3d 16, 18 (Tex. App.—Waco 2013, pet. ref’d).

However, Rule 21.3 is not an all-inclusive list. See State v. Herndon, 215 S.W.3d 901, 907

(Tex. Crim. App. 2007); State v. Evans, 843 S.W.2d 576, 578-79 (Tex. Crim. App. 1992).

        Historically, we have consistently held that a trial judge has the authority
        to grant a new trial “in the interest of justice” and that his decision to grant
        or deny a defendant’s motion for new trial is reviewed only for an abuse of
        discretion. That discretion is not, however, unbounded or unfettered. A
        trial judge has discretion to grant or deny a motion for new trial “in the
        interest of justice,” but “justice” means in accordance with the law.
Delafuente v. State                                                                        Page 14
                 ...

        While a trial court has wide discretion in ruling on a motion for new trial
        which sets out a valid legal claim, it should exercise that discretion by
        balancing a defendant’s “interest of justice” claim against both the interests
        of the public in finality and the harmless-error standards set out in Rule
        44.2. Trial courts should not grant a new trial if the defendant’s substantial
        rights were not affected. Otherwise, the phase “interest of justice” would
        have no substantive legal content, but constitute a mere platitude covering
        a multitude of unreviewable rulings.

Herndon, 215 S.W.3d at 907-08; see State v. Thomas, 428 S.W.3d 99, 105 (Tex. Crim. App.

2014) (“There must be some legal basis underpinning the grant of a new trial, even if it is

granted in the interest of justice.”).

        On appeal, appellant argues that the trial court abused its discretion by denying

his motion for new trial based on purported violations of Article 39.14 of the Code of

Criminal Procedure and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963). See TEX. CODE CRIM. PROC. ANN. art. 39.14 (West Supp. 2017). Specifically,

appellant contends that the State failed to disclose evidence of Officer Carter being

stopped by law enforcement and being terminated by the Waco Police Department due

to the stop. Appellant further argues that the alleged evidence could have been used to

impeach Officer Carter’s testimony.2



        2 In support of this issue, appellant directs us to an affidavit executed by his appellate counsel that
describes the purported stop of Officer Carter for the suspicion of driving while intoxicated. In this
affidavit, counsel does not specifically mention the source of the information for the purported stop of
Officer Carter. Rather, regarding the source of the information, counsel merely stated that: “After the
verdict was rendered, defense investigation revealed that the sole witness for the state, Officer Kevin

Delafuente v. State                                                                                   Page 15
        We first address appellant’s complaints under Article 39.14 of the Code of

Criminal Procedure. This Court has previously stated the following regarding Article

39.14 complaints:

        For many years, criminal defendants have been entitled to limited
        discovery under Article 39.14 of the Texas Code of Criminal Procedure in
        addition to, and independent of, the constitutional right of access to
        exculpatory evidence explained in Brady v. Maryland. Kinnamon v. State, 791
        S.W.2d 84, 91 (Tex. Crim. App. 1990), overruled on other grounds by Cook v.
        State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994) (citing Brady v. Maryland,
        373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Until 2014, Texas law
        required the defendant to file a motion and on the hearing thereof to show
        good cause to the trial court for the discovery of evidence from the State.
        However, the passage of the Michael Morton Act amended Article 39.14(a)
        to require that the State, upon a request of the defendant, produce
        “designated books, accounts, letters, photographs, or objects or other
        tangible things not otherwise privileged that constitute or contain evidence
        material to any matter involved in the action and that are in the possession,
        custody, or control of the state or any person under contract with the state.”
        TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West Supp. 2018) (emphasis
        added).

                ...

        [T]o establish that requested evidence is material, it is necessary that a
        defendant must provide more than a possibility that it would help the
        defense or affect the trial. See Branum v. State, 535 S.W.3d 217, 224-25 (Tex.
        App.—Fort Worth 2017, no pet.). Evidence must be “indispensable to the
        State’s case” or must provide a reasonable probability that its production
        would result in a different outcome to be considered material and subject
        to mandatory disclosure under Article 39.14(a). Branum, 535 S.W.3d at 225;
        see Ehrke v. State, 459 S.W.3d 606, 611 (Tex. Crim. App. 2015) (Evidence is
        material if it affects the essential proof that the defendant committed the
        offense charged.); Quinones v. State, 592 S.W.2d 933, 941 (Tex. Crim. App.
        1980).


Carter, was previously stopped, and detained by members of law enforcement under suspicion of Driving
While Intoxicated.”

Delafuente v. State                                                                          Page 16
Carrera v. State, 554 S.W.3d 800, 801-02 (Tex. App.—Waco 2018, no pet.).

        Nothing in the record indicates that the traffic stop of Officer Carter resulted in an

arrest or conviction. Indeed, in an affidavit, appellant’s trial counsel acknowledged that:

“Rather than arrest him [Officer Carter], law enforcement made the decision to allow him

to park his vehicle and receive a ride home.” Because this incident did not result in a

conviction, it was not admissible at trial and, thus, was not material to the case. See TEX.

R. EVID. 608(b), 609; TEX. CODE CRIM. PROC. ANN. art. 39.14(a); see also Dalbosco v. State, 978

S.W.2d 236, 238 (Tex. App.—Texarkana 1998, pet. ref’d) (“Specific instances of conduct of

a witness in order to attack his credibility, other than a conviction of a crime as provided

for in Rule 609, may not be inquired into on cross-examination of the witness, nor proved

by extrinsic evidence.”). Furthermore, given the inadmissibility of the complained-of

evidence, it cannot be said that the evidence was indispensable to the State’s case or

provided a reasonable probability that its production would result in a different outcome,

especially because the entirety of the offense was captured on video and was played for

the jury, the facts of the case were not disputed, and because Officer Carter’s credibility

was not challenged in the case. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h) (providing

that the State “shall disclose to the defendant any exculpatory, impeachment, or

mitigating document, item, or information in the possession, custody, or control of the

state that tends to negate the guilt of the defendant or would tend to reduce the



Delafuente v. State                                                                     Page 17
punishment for the offense charged”); see also Ehrke, 459 S.W.3d at 611; Quinones, 592

S.W.2d at 941; Carrera, 554 S.W.3d at 801-02; Branum, 535 S.W.3d at 225.

        Next, we address appellant’s Brady complaint, which mirrors the contention he

made in reference to Article 39.14 of the Code of Criminal Procedure. Brady requires the

prosecution to disclose evidence that is favorable to the accused when that evidence is

material to guilt or punishment. See 373 U.S. at 87, 83 S. Ct. at 1196-97. To establish a

Brady violation, appellant must demonstrate that: (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. See Ex parte Miles, 359 S.W.3d 647, 655

(Tex. Crim. App. 2012); see also Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006)

(internal citations omitted).    “Incorporated into the third prong, materiality, is a

requirement that defendant must be prejudiced by the state’s failure to disclose the

favorable evidence.” Harm, 183 S.W.3d at 406 (internal citation omitted). “Additionally,

we require that the evidence central to the Brady claim be admissible in court.” Ex parte

Miles, 359 S.W.3d at 665 (citing Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993)).

        As mentioned above, the complained-of evidence did not result in a conviction

and, thus, under Texas Rules of Evidence 608 and 609, would not be admissible at trial.

See TEX. R. EVID. 608, 609; see also Dalbosco, 978 S.W.2d at 238. As such, “[a] prosecutor

does not have a duty to turn over evidence that would be inadmissible at trial.” Ex parte

Kimes, 872 S.W.2d at 703. Furthermore, it cannot be said that the complained-of evidence


Delafuente v. State                                                                   Page 18
is material because the entirety of appellant’s offense was captured on video and was

played for the jury, the facts of appellant’s case were not disputed, and because Officer

Carter’s credibility was not challenged in the case. Accordingly, we do not find a Brady

violation with regard to the complained-of evidence. See Brady, 373 U.S. at 87, 83 S. Ct. at

1196-97; Ex parte Miles, 359 S.W.3d at 665; Ex parte Kimes, 872 S.W.2d at 703; Dalbosco, 978

S.W.2d at 238; see also TEX. R. EVID. 608, 609. Therefore, given the above, we cannot say

that the trial court abused its discretion by denying appellant’s motion for new trial. See

Webb, 232 S.W.3d at 112. We overrule his third issue.

                                     IV.    CONCLUSION

        Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                                 JOHN E. NEILL
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed October 23, 2019
Do not publish
[CR25]

*(Chief Justice Gray concurs in the Court’s judgment which affirms the trial court’s
judgment. A separate opinion will not be issued.)



Delafuente v. State                                                                  Page 19
