Affirmed and Memorandum Opinion filed March 21, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00595-CR

                  JAMES WESTON GARRETT, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 355th District Court
                            Hood County, Texas
                      Trial Court Cause No. CR11125

                MEMORANDUM                     OPINION
      Appellant James Weston Garrett was “unsuccessfully discharged” from a
psychological therapy program he was ordered to attend as a condition of deferred
adjudication community supervision. After a hearing, the trial court revoked the
appellant’s community supervision, found him guilty of the indicted offense of
aggravated sexual assault of a child, and sentenced him to 20 years’ confinement.
On appeal, the appellant alleges that the State committed a Brady1 violation by
concealing evidence that he was discharged from the therapy program in retaliation
for his mother’s withdrawal from a “cleverly disguised pyramid scheme” run by
the program’s lead therapist. We affirm.

                                      BACKGROUND

      On January 14, 2009, the appellant was indicted for aggravated sexual
assault of a child; he pleaded guilty. The trial court sentenced the appellant to
deferred adjudication and 10 years of community supervision pursuant to the
State’s recommendation, subject to 31 conditions set out in the order of deferred
adjudication. Condition 18 is the only one directly relevant to this appeal. It
provides:

      Defendant shall attend psychological counseling for sex offenders
      under the direction and supervision of the Hood County CSCD, and
      pay all costs associated therewith and continue said program until
      discharged by the counselor or the Court.

The appellant was “unsuccessfully discharged” from his psychological counseling
program on February 20, 2012. On the grounds that this constituted a violation of
condition 18 of the appellant’s community supervision, the State filed a motion to
proceed with an adjudication of guilt.

      On April 16, 2012, the trial court heard arguments and considered evidence
on the State’s motion. Amber Boswell, the appellant’s community supervision
officer, testified that the appellant had a history of compliance issues and that she
believed that revocation of the appellant’s community supervision was the only
remaining option.2


      1
          Brady v. Maryland, 373 U.S. 83 (1963).
      2
          Boswell testified that less severe punishments — strict reporting requirements and a 60-
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       Paula Schirman, who oversaw the appellant’s psychological therapy
program, testified that the appellant failed to attend several therapy sessions and
that he consistently showed a bad attitude during the sessions he did attend. In the
trial court, she explained that the appellant’s complete refusal to participate in the
group therapy sessions led her to discharge him from the program:

       The main reason, attitude. I mean he — he violated probation. He —
       he did things that were inappropriate, but he — I would not have
       kicked him out of group if he had tried at all. [The appellant] would
       not try. He had a horrible attitude.

The appellant’s mother and father testified for the defense. The trial court revoked
the appellant’s community supervision, found him guilty of the indicted offense of
aggravated sexual assault of a child, and sentenced him to 20 years’ confinement.

     For the first time on appeal, the appellant alleges that he was discharged from
the therapy program because his mother withdrew from Schirman’s “cleverly
disguised pyramid scheme.” In his sole issue, the appellant alleges that the State
violated his due-process rights by failing to disclose evidence that he was
discharged in retaliation for his mother’s withdrawal from Schirman’s investment
scheme.

                                            ANALYSIS

       It is well settled that the suppression by the prosecution of evidence
favorable to a defendant violates due process if the evidence is material either to
guilt or punishment, without regard to the good or bad faith of the prosecution.
Brady v. Maryland, 373 U.S. 83, 87 (1963); Harm v. State, 183 S.W.3d 403, 406
(Tex. Crim. App. 2006). An appellant must satisfy three requirements to establish
a Brady violation: (1) the State suppressed evidence, (2) the suppressed evidence is

day jail sentence — had been ineffective.

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favorable to the appellant, and (3) the evidence is material. Harm, 183 S.W.3d at
406. When the appellant already has access to the evidence he accuses the State of
conceding, there is no Brady violation. See Hayes v. State, 85 S.W.3d 809, 815
(Tex. Crim. App. 2002).

      At least one Texas court of appeals has applied Brady in the context of a
revocation proceeding.    Stevens v. State, 900 S.W.2d 348, 352 (Tex. App.—
Texarkana 1995, pet. ref’d).      Additionally, both parties argue Brady as the
applicable standard; our analysis below uses the Brady framework.

I.    Jurisdiction

      Initially, we address the issue of our jurisdiction over this appeal. Typically,
appeals may not be taken from decisions to adjudicate guilt when a condition of
community supervision has been violated. Tex. Code Crim. Proc. art. 42.12 § 5(b)
(Vernon Supp. 2012); Lyons v. State, 222 S.W.3d 658, 659 (Tex. App.—Houston
[14th Dist.] 2007, no pet.). However, that restriction does not apply to matters
unrelated to the determination of guilt after a deferred adjudication. Durgan v.
State, 240 S.W.3d 875, 877 (Tex. Crim. App. 2007); Lyons, 222 S.W.3d at 659.
Article 42.12 does not deprive appellate courts of jurisdiction to determine whether
the proceedings in the trial court satisfied the requirements of substantive and
procedural due process. See Durgan, 240 S.W.3d at at 878 (concluding that
appellate court had jurisdiction over an assertion that the defendant was not
competent at the time of the adjudication hearing because such an assertion “raises
a preliminary due-process issue that must be resolved before the adjudication
process may begin”).

      Because the appellant’s sole issue is the alleged violation of his right to due
process under Brady, we conclude that this case is within our jurisdiction.


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II.   Brady Claim

      In the record before us, we are unable to find a single reference to the
evidence at the heart of the appellant’s claim. We can find no evidence that (1) the
State suppressed evidence, (2) the suppressed evidence is favorable to the
appellant, or (3) the evidence is material. Accordingly, The appellant has failed to
demonstrate any of the Brady elements. See Harm, 183 S.W.3d at 406.

      Further, the exhibits attached to the appellant’s appellate brief3 suggest that
the appellant was aware of the very evidence he accuses the State of withholding.
These exhibits include a complaint filed by the appellant’s mother with the Texas
Department of State Health Services Professional Licensing and Certification Unit.
The complaint is not dated. It states, in relevant part:

      In May 2010 I withdrew from [the “pyramid scheme”]. The next
      group meeting my son attended he was kicked out of class. He was
      told he had a bad attitude. This episode was not reported to his
      probation officer, which leads me to believe that [it] was just a
      message to me that [Schirman] had the power to do whatever she
      wants to.

      The hearing on the State’s motion to proceed with an adjudication of guilt
occurred nearly two years after this incident, and the appellant’s mother testified
for the defense. Brady does not apply when the defendant has access to the
evidence allegedly withheld. Hayes, 85 S.W.3d at 815; Jackson v. State, 552
S.W.2d 798, 804 (Tex. Crim. App. 1976) (“We cannot conclude that the prosecutor
violated his duty to disclose favorable evidence to the appellant when the evidence
was already available to him.”).            So, even if the record supported the Brady
elements, the appellant’s allegations would be without merit.

      We overrule the appellant’s sole issue.
      3
          These exhibits are not included in the record before us.

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                                CONCLUSION

      Having overruled the appellant’s sole issue on appeal, we affirm the
judgment of the trial court.




                                     /s/       William J. Boyce
                                               Justice



Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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