                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
                                                                 No. 08-14-00144-CV
                                                 §
 IN THE MATTER OF E.O.E.,                                             Appeal from
 A JUVENILE.                                     §
                                                                  65th District Court
                                                 §
                                                               of El Paso County, Texas
                                                 §
                                                                    (TC # 1000902)
                                                 §

                                          OPINION

       The State charged E.O.E., with the offense of aggravated assault with the use of a deadly

weapon pursuant to Section 53.045 of the Texas Family Code. A jury trial was held on February

11, 2014, in which a jury found him to have engaged in delinquent conduct. E.O.E. now appeals

the jury’s finding. He brings four issues for review, arguing that the trial court erred when it

denied his: (1) self-defense instruction to the jury; (2) motion to suppress; (3) motion for mistrial

due to alleged Brady violations; and (4) motion for a new trial based on alleged claims of

prosecutorial misconduct. For the reasons that follow, we affirm.

                                       Factual Background

                                             The Fight

       An altercation over alcohol arose between E.O.E. and Jorge Quinones at a house party on

June 30, 2013. E.O.E. became argumentative and aggressive when Quinones denied him access
to the ice chest containing the alcohol. He confronted Quinones, stating that “he didn’t give a

f**k, he didn’t care what anybody said and whoever got in his face, he was going to f**k

everybody up.” This verbal exchange escalated into a physical fight when E.O.E. punched

Quinones first, but missed. The fight began at the main entrance of the home, moved to the

parking lot, and eventually into the street. Quinones testified that he was protecting his family

when the fight began. Quinones noticed at some point during the fight that E.O.E. pulled a knife

and began swinging it at him. Quinones told E.O.E. to put the knife down so that they could

fight “hand in hand, no knifes [sic],” but E.O.E. continued swinging the knife at Quinones.

When the party moved into the street, E.O.E. and his friends threw rocks at Quinones. Quinones

explained that he continued chasing E.O.E. and his friends away from the house in order to

protect his family. Once the fight was over, Quinones noticed that he had been stabbed in his

abdomen. Quinones gave his statement to the police on September 13, 2013, in which he

referred to E.O.E. as the “fat kid, six, one, heavy, dark skin, about 17 years old, very short hair.”

He was unable to make a positive identification in any photo lineups.

                                            Appellant’s Arrest

       Officer Jesus Munoz received a call around midnight regarding a fight in progress and

arrived at the scene shortly thereafter. The radio dispatch indicated that some of the individuals

fled the scene. Officer Munoz spoke with Quinones who indicated that he was involved in a

physical altercation in which he was stabbed. Quinones gave Officer Munoz a description of his

attacker. He described the person as a “Hispanic juvenile,” of medium build, and provided

Officer Munoz with a clothing description.          Officer Munoz immediately dispatched this

description over his radio to other officers in the surrounding area, but failed to later include the

description in his written report. Officer Rodolfo Moreno received Officer Munoz’s dispatch

call concerning a fight involving weapons on the corner of Elm St. and Porter Ave. He was

                                                       -2-
already in the vicinity of where the fight occurred when he received the call. The dispatch call

he initially heard did not indicate that there had been a stabbing.        As he approached the

intersection, Officer Moreno encountered E.O.E. along with two other juveniles walking

eastbound on Porter Ave. The trio were located only three or four houses away from the house

where the fight occurred, and were walking away from the scene. When the two juveniles

accompanying E.O.E. noticed Officer Moreno, they fled southbound while E.O.E. continued

walking eastbound. As Officer Moreno approached E.O.E. in his vehicle, he noticed that E.O.E.

kept looking over his shoulder and reaching for his back pocket with his left hand. Officer

Moreno testified that he was concerned that E.O.E. might be carrying a weapon given the nature

of the dispatch call. E.O.E. initially refused to stop at Officer Moreno’s request, but finally did

so after the third request. Once he stopped, he voluntarily raised his hands in the air and walked

toward Officer Moreno, sweating profusely. According to Officer Moreno, the profuse sweating

indicated that he was either running or had just finished doing something physical. When

Officer Moreno asked E.O.E. what he was doing and where he was coming from, the juvenile

responded: “[We] were just walking by some party and there were--some guys were trying to

jump [us], like beat [us] up and that’s why [we] were running away from the property.” Officer

Moreno testified both at the suppression hearing and at trial that E.O.E.’s response, his vicinity

to the fight, the time of night, and his consistent efforts to reach for his back pocket caused him

to become suspicious of his activities. Accordingly, Officer Moreno conducted a pat down and

found a knife in the juvenile’s back left pocket. When Officer Moreno asked E.O.E. what was in

his pocket, he responded, “I think it’s a knife.” Officer Moreno secured the knife onto his belt

and continued questioning.     While attempting to contact E.O.E.’s mother, Officer Moreno

received an update over the radio indicating that there was a stabbing where the fight took place.

Another officer who was at the fight scene -- Officer Argomedo -- contacted Officer Moreno on

                                                      -3-
the radio to ask him if he still had a subject detained, to which Officer Moreno responded in the

affirmative. Officer Argomedo asked for a clothing description and Officer Moreno told him the

suspect was wearing a “red top, black pants,” and Officer Argomedo instructed Officer Moreno

to “hold onto [the subject].” Officer Argomedo met Officer Moreno at the street location where

Officer Moreno stopped E.O.E. to confirm that he was indeed the suspect they were looking for.

                                      Officer Moreno’s 2008 Incident

        At the conclusion of Officer Moreno’s trial testimony, E.O.E. inquired into his

involvement in an on-duty shooting that occurred in 2008. The trial court conducted a bill of

review outside the presence of the jury. Officer Moreno was working undercover at a 7-Eleven

on East Yandell in El Paso, Texas, along with his partner. The two officers were patrolling the

block when they heard gunshots coming from the store. Officer Moreno and his partner went

immediately to the store. Inside, they encountered the suspect with a gun. Officer Moreno’s

partner instructed the suspect repeatedly to put his weapon down, but instead, the suspect pointed

his gun toward Officer Moreno. Both Officer Moreno and his partner opened fire on the suspect.

The Internal Affairs division of the El Paso Police Department (EPPD) conducted an

investigation of the shooting pursuant to their protocol. No criminal charges were filed, and

EPPD neither sanctioned nor brought any disciplinary actions against Officer Moreno. The

deceased shooter’s wife, however, brought a civil lawsuit against Officer Moreno. Officer

Moreno initially testified during trial, prior to the bill of review, that he was found “not guilty” in

that suit.   He also referenced a jury trial, and indicated that his “charges were dropped.”

However, Officer Moreno’s bill of review testimony indicated that the civil lawsuit was in fact

dismissed with prejudice, and Officer Moreno never went before any kind of jury, civil or

criminal, and no charges whatsoever were ever filed.



                                                        -4-
                                  DNA Expert Kathy Serrano’s Testimony

        Kathy Serrano testified at trial as an expert witness in DNA testing and analysis. Serrano

conducted a presumptive blood test on the knife retrieved from E.O.E. to determine whether

blood existed on the knife. Her analysis detected blood on the knife and she documented her

findings in her forensic biology laboratory report. On cross-examination, E.O.E. inquired into

the absence of the knife photographs contained in Serrano’s report. Serrano testified that while

she took photographs of the knife in this case, she did not include them in her report. She went

on to indicate that her typical process for most cases involved producing the report without the

photographs. Serrano explained that she only provided the photographs upon request because

they were part of her case notes and not part of her final findings or report. When the State

attempted to show the photographs to Serrano, E.O.E. objected on the ground that the State’s

actions of withholding the photographs constituted a Brady violation. E.O.E. conducted voir dire

to inquire further into the issue. At the time the court issued the discovery order addressing both

the Brady material and the expert witness disclosures, the State had no knowledge that the

photographs existed. It was not until a pretrial hearing, held ten days before trial, that the State

came into possession of the knife photographs. E.O.E. then moved for mistrial and requested

that the trial court strike Serrano’s testimony. The State responded that the motion for mistrial

should be denied because the photographs had not been admitted into evidence and the jury had

not even seen them yet. The trial court ultimately sustained E.O.E. objection to the photographs,

but denied the motion for mistrial. It then struck Serrano’s entire testimony from the record and

instructed the jury to disregard it.

                                SELF-DEFENSE INSTRUCTION

        In his first issue, E.O.E. contends the trial court erred by not including a self-defense

instruction to the jury. “When reviewing a trial court’s decision to deny a requested defensive

                                                      -5-
instruction, we view the evidence in the light most favorable to the defendant’s requested

submission.” Lee v. State, 442 S.W.3d 569, 576-77 (Tex.App.--San Antonio 2014), citing Bufkin

v. State, 207 S.W.3d 779, 782 (Tex.Crim.App. 2006). In analyzing a charge issue, our first

determination is whether error exists in the charge. Id., at 576-77, citing Barrios v. State, 283

S.W.3d 348, 350 (Tex.Crim.App. 2009). If we discover error, we must then determine whether

that error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743-44

(Tex.Crim.App. 2005). Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984),

superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787

(Tex.Crim.App. 1988), a jury charge error requires reversal when the defendant properly

objected to the charge and we find “some harm” to his rights. Because E.O.E. properly objected,

we must determine whether “the error appearing from the record was calculated to injure” his

rights, in other words, whether there was “some harm.” TEX.CODE CRIM.PROC.ANN. art. 36.19

(West 2006). Finally, in evaluating harm, we consider the jury charge as a whole, the arguments

of counsel, all of the evidence “including the contested issues and weight of the probative

evidence,” and any other relevant information revealed by the record as a whole. Wooten v.

State, 400 S.W.3d 601, 606 (Tex.Crim.App. 2013); Almanza, 686 S.W.2d at 171.

       The trial court must instruct the jury on statutory defenses, affirmative defenses, and

justifications when they are requested by the defendant and raised by the evidence. Walters v.

State, 247 S.W.3d 204, 208-09 (Tex.Crim.App. 2007). A defendant is entitled to an instruction

on self-defense as long as the issue is raised by the evidence, whether that evidence is strong or

weak, unimpeached or contradicted, and regardless of what the trial court may think about the

credibility of the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001); Booth v.

State, 679 S.W.2d 498, 500 (Tex.Crim.App. 1984); Lugo v. State, 667 S.W.2d 144, 146-47

(Tex.Crim.App. 1984). Here, “raised by the evidence” means “there is some evidence, from any

                                                     -6-
source, on each element of the defense that, if believed by the jury, would support a rational

inference that th[e] element is true.” Shaw v. State, 243 S.W.3d 647, 657-58 (Tex.Crim.App.

2007); Lee, 442 S.W.3d at 577. This rule ensures that it is the jury, and not the trial court, that

decides the relative credibility of the evidence. Lee, 442 S.W.3d at 577. Testimony from any

witness is sufficient to raise defensive issues. VanBrackle v. State, 179 S.W.3d 708, 712-13

(Tex.App.--Austin 2005, no pet.). And in determining whether the testimony actually raised a

defensive theory, we view that evidence in the light most favorable to the defendant. Id. at 713.

          The Texas Penal Code provides that “a person is justified in using force against another

when and to the degree the actor reasonably believes the force is immediately necessary to

protect the actor against the other’s use or attempted use of unlawful force.” TEX.PEN.CODE

ANN. § 9.31(a)(West 2011). A “‘[r]easonable belief’ means a belief that would be held by an

ordinary and prudent man in the same circumstances as the actor.” Id. at § 1.07(a)(42). If the

actor is responding to force that he initially provoked, then the use of force is not justified under

the statute, unless the actor abandons the encounter but the other nevertheless continues or

attempts to use unlawful force against the actor. Tidmore v. State, 976 S.W.2d 724, 728-29

(Tex.App.--Tyler 1998, pet. ref’d); § 9.31(b)(4)(A). The accused’s intent may be inferred from

words, acts, and conduct of the accused;1 from the methods used and the wounds inflicted;2 as

well as from the circumstances surrounding the use of a weapon. Cordova v. State, 698 S.W.2d

107, 112 (Tex.Crim.App. 1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352

(1986).      “The Penal Code justification for self-defense focuses on the existence of some

necessity, the circumstances under which the force was used, the degree of force used, and the

type of conduct against which the force was used.” Tidmore, 976 S.W.2d at 728.

1
    Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. 1982)
2
    Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App. 1981)

                                                              -7-
       The amount of force used by the accused must also be proportionate to the amount of

force encountered. Id. The Texas Penal Code adopted special rules to govern the use of deadly

force in the context of self-defense. Id. Section 9.01(3) defines deadly force to mean force that

is known or intended by the actor to cause death or serious bodily injury, or force that is capable

of causing death or serious bodily injury in the manner of its use or intended use. § 9.01(3). A

person is only entitled to use deadly force in self-defense against another: (1) if the actor would

be justified in using [nondeadly] force against the other under Section 9.31 of the [Penal] code;

and (2) when and to the degree [he] reasonably believes the deadly force is immediately

necessary to protect himself against the other’s use or attempted use of unlawful deadly force; or

to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault,

aggravated sexual assault, robbery, or aggravated robbery. Id. at § 9.32(a)(1)(2)(A)(B).

       More importantly, to rely on self-defense, a defendant must first admit to committing the

conduct which forms the basis of the indictment. § 9.31; Stoltz v. State, No. 08-10-00048-CR,

2011 WL 3199337, at *4 (Tex.App.--El Paso, July 27, 2011, pet. ref’d); East v. State, 76 S.W.3d

736, 738 (Tex.App.--Waco 2002, no pet.); Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App.

1999); Kimbrough v. State, 959 S.W.2d 634, 640 (Tex.App.--Houston [1st Dist.] 1995, pet.

ref’d); MacDonald v. State, 761 S.W.2d 56, 60 (Tex.App.--Houston [14th Dist.] 1988, pet.

ref’d). The Code defines conduct as “an act or omission and its accompanying mental state.”

TEX.PEN.CODE ANN. § 1.07(a)(10). Like other statutory defenses, a defendant’s conduct is not

negated under self-defense, but is excused from what would otherwise constitute criminal

conduct. Shaw, 243 S.W.3d at 659; see also Young, 991 S.W.2d at 838 (explaining that “[i]n

order to raise [a] necessity [defense], a defendant admits violating the statute under which he is

charged and then offers necessity as a justification which weighs against imposing a criminal

punishment for the act or acts which violated the statute.”). Accordingly, an instruction to the

                                                     -8-
jury is inappropriate when the defensive evidence fails to essentially admit to “every element” of

the offense. Shaw, 243 S.W.3d at 659.

       E.O.E. contends the trial court erred in failing to include instructions on self-defense to

the jury. He argues that “some evidence” was presented from the testimony of several witnesses,

including E.D., J.D., and Jorge Quinones. He also argues that he retreated to the front of the

home, and tried to run away, but Quinones continued to follow him. We disagree.                 The

testimony does not support E.O.E.’s disproportionate use of deadly force in this instance.

Rather, the record reflects that he: (1) provoked the initial argument; (2) took the “first swing” at

Quinones; (3) threw rocks at Quinones while he was in the street; (4) and then threatened

Quinones during their fist fight with a knife and continued to do so even after Quinones told him

to put the knife away. More importantly, the trial centered on E.O.E. denying that he ever

committed the offense with which he was charged. There is no evidence to support a finding that

the juvenile admitted to actually committing the offense of aggravated assault with a deadly

weapon, which would then entitle him to a self-defense instruction. Because he cannot receive a

self-defense instruction without first admitting to the offense, the trial court did not err in

denying the self-defense instruction. We overrule Issue One.

                         DENIAL OF THE MOTION TO SUPPRESS

       In his second issue, E.O.E. complains that the trial court erred in denying his motion to

suppress. He contends that Officer Moreno stopped, detained, and ultimately arrested him based

on a mere “hunch.” We disagree.

       When reviewing a trial court’s decision to deny a motion to suppress, we “afford almost

total deference to a trial court’s determination of the historical facts that the record supports

especially when the trial court’s fact findings are based on an evaluation of credibility and

demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We also afford the

                                                       -9-
same amount of deference to trial courts’ rulings on “application of law to fact questions,” also

known as “mixed questions of law and fact,” if the resolution of those questions ultimately turns

on an evaluation of credibility and demeanor.         Montanez v. State, 195 S.W.3d 101, 106

(Tex.Crim.App. 2006), quoting Guzman, 955 S.W.2d at 89; State v. Ross, 32 S.W.3d 853, 856

(Tex.Crim.App. 2000). Finally, where the resolution of mixed questions of law and fact do not

turn on an evaluation of credibility and demeanor, we conduct a de novo review. Montanez, 195

S.W.3d at 106, quoting Guzman, 955 S.W.2d at 89.

       Generally, we consider only the evidence adduced at the suppression hearing because the

trial court’s ruling was based on it rather than evidence introduced later at trial. Rachal v. State,

917 S.W.2d 799, 809 (Tex.Crim.App. 1996); Hardesty v. State, 667 S.W.2d 130, 135 n.6

(Tex.Crim.App. 1984). However, this general rule is inapplicable where, as in this case, the

parties subsequently re-litigated the suppression issue during the trial on the merits. Hardesty,

667 S.W.2d at 135 n.6. In such an instance, it is appropriate that we consider all evidence, from

both the pre-trial hearing and the trial, in our review of the trial court’s determination. Rachal,

917 S.W.2d at 809 (“Where the State raises the issue at trial either without objection or with

subsequent participation in the inquiry by the defense, the defendant has made an election to re-

open the evidence, and consideration of the relevant trial testimony is appropriate in our

review.”); see also Webb v. State, 760 S.W.2d 263, 272 n.13 (Tex.Crim.App. 1988), cert. denied,

491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989).

       The Fourth Amendment of the United States Constitution and Article I, Section 9 of the

Texas Constitution protect against unreasonable searches and seizures by government officials.

See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007); Johnson v. State, 912 S.W.2d

227, 232-234 (Tex.Crim.App. 1995); Martinez v. State, 72 S.W.3d 76, 81 (Tex.App.--Amarillo

2002, no pet.). Our decision here turns on whether Officer Moreno had a reasonable suspicion

                                                      -10-
that E.O.E. was engaged in wrongdoing when he encountered him on the sidewalk. In Terry v.

Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968), the United States Supreme

Court held that a police officer can stop and briefly detain a person for investigative purposes if

the officer has a reasonable suspicion supported by articulable facts that criminal activity “may

be afoot,” even is the officer lacks probable cause. U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct.

1581, 1585, 104 L.Ed.2d 1 (1989). The officer, of course, must still be able to articulate

something more than an “inchoate and unparticularized suspicion or ‘hunch.’” Terry, 392 U.S.

at 27, 88 S.Ct. at 1883. The level of suspicion required for a Terry stop is obviously less

demanding than that for probable cause. Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585.

       Like probable cause, the concept of reasonable suspicion is not “readily, or even usefully,

reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332,

76 L.Ed.2d 527 (1983). Reasonable suspicion is established if the officer can point to “specific

and articulable facts which, taken together with rational inferences from those facts, reasonably

warrant” the police officer’s intrusion into the suspect’s constitutionally protected interests.

Terry, 392 U.S. at 21, 88 S.Ct. at 1880. We consider the totality of the circumstances when

evaluating the validity of a Terry stop. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct.

690, 695, 66 L.Ed.2d 621 (1981); Moore v. State, 760 S.W.2d 808, 809-10 (Tex.App.--Austin

1988, pet. ref’d).   The “totality of the circumstances” analysis requires us to respect “the

common-sense, reasonable judgments of law enforcement officers, as informed by all

surrounding facts and circumstances and the rational inferences and deductions officers may

draw from them based on their experience and familiarity and the areas they serve.” In re

R.S.W., No. 03-04-00570-CV, 2006 WL 565928, at *3 (Tex.App.--Austin, Mar. 9, 2006, no

pet.); Ford v. State, 158 S.W.3d 488, 494 (Tex.Crim.App. 2005)(law enforcement training or

experience can factor into a reasonable suspicion analysis); see also United States v. Cortez, 449

                                                     -11-
U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

       Here, Officer Moreno identified numerous objective facts that could have led him to

reasonably conclude that E.O.E. had engaged in criminal activity. He stopped and detained

E.O.E. due to the suspicious circumstances surrounding the encounter.            Collectively, these

circumstances included: (1) the juvenile’s continuous behavior of reaching toward his back

pocket; (2) the time of night (it was past the City’s 11 p.m. curfew for juveniles); (3) the location

where he encountered E.O.E. and its proximity to the location where the fight with weapons

occurred; (4) E.O.E.’s juvenile companions who fled the scene as soon as he approached them in

his vehicle; (5) and E.O.E.’s response that he had just come from the direction of the fight. In re

R.S.W., 2006 WL 565928 at *11; Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997);

State v. Bryant, 161 S.W.3d 758, 762 (Tex.App.--Fort Worth 2005, no pet.)(time of night and

area’s crime rate supported a reasonable suspicion that defendant was, or would soon be,

engaged in criminal activity); Alexander v. State, 879 S.W.2d 338, 342 (Tex.App.--Houston

[14th Dist.] 1994, pet. ref’d)(being in a park hours past curfew and acting as if one were trying to

hide something are facts sufficient to constitute reasonable suspicion).

       Officer Moreno’s stop was not based on any single factor or mere hunch, but a collective

assessment of the scene as he observed it and the information he received when he encountered

E.O.E. Moreover, upon encountering E.O.E., Officer Moreno was permitted to ask him, with or

without reasonable suspicion, what he was doing and where he was going. Florida v. Royer, 460

U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983); Johnson v. State, 912

S.W.2d 227, 235 (Tex.Crim.App. 1995). Appellant’s profuse sweating and response indicating

that he had just come from the direction of where the fight occurred provided Officer Moreno

with an additional reasonable basis for the stop. See Balentine v. State, 71 S.W.3d 763, 769

(Tex.Crim.App. 2002). We do note, however, that in isolation, each factor individually would

                                                      -12-
not be sufficient to establish reasonable suspicion. See Horton v. State, 16 S.W.3d 848, 853-54

(Tex.App.--Austin 2000, no pet.)(finding that nervous behavior alone was not enough to

establish reasonable suspicion); Gamble v. State, 8 S.W.3d 452, 454 (Tex.App.--Houston [1st

Dist.] 1999, no pet.)(explaining that walking away from police in a residential neighborhood at

night without any other factors giving rise to suspicion was not sufficient to justify a frisk). In

sum, Officer Moreno’s suspicion that Appellant had engaged in criminal activity was based on

far more than a mere “hunch” that Appellant alleges. Accordingly, we overrule Appellant’s

second issue on appeal.

                                    BRADY VIOLATIONS?

         Because Issues Three and Four allege Brady violations, we will consider them together.

                             Standard of Review and Applicable Law

         We review a trial court’s ruling on a motion for mistrial under an abuse of discretion

standard. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007); Salazar v. State, 38

S.W.3d 141, 148 (Tex.Crim.App. 2001). We must uphold the trial court’s ruling if it was within

the zone of reasonable disagreement. Archie, 221 S.W.3d at 699, citing Wead v. State, 129

S.W.3d 126, 129 (Tex.Crim.App. 2004). “Only in extreme circumstances, where the prejudice is

incurable, will a mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.

2004).

         “Generally, a mistrial is only required when the improper evidence is ‘clearly calculated

to inflame the minds of the jury and is of such a character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jury.’” Hinojosa v. State, 4 S.W.3d

240, 253 (Tex.Crim.App. 1999), citing Hernandez v. State, 805 S.W.2d 409, 414

(Tex.Crim.App. 1990). Otherwise, where the prejudice is curable, an instruction by the court to

disregard eliminates the need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App.

                                                     -13-
2004); see also Christ v. State, 480 S.W.2d 394, 396 (Tex.Crim.App. 1972)(explaining that a

court’s instruction to disregard a records custodian’s testimony was sufficient to remedy any

prejudice because the court struck the testimony in its entirety). It is also presumed that a jury

follows a trial court’s motion to disregard improperly admitted evidence. Hinojosa, 4 S.W.3d at

253.

       The State has an affirmative duty under the Due Process Clause to disclose exculpatory

or impeachment evidence that is material to guilt or punishment. See United States v. Bagley,

473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S.

83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); State v. DeLeon, 971 S.W.2d 701, 705

(Tex.App.--Amarillo 1998, pet. ref'd); Harwood v. State, 961 S.W.2d 531, 544 (Tex.App.--San

Antonio 1997, no pet.). A Brady violation occurs whenever the state suppresses, either willfully

or even inadvertently, evidence favorable to a defendant. Brady, 373 U.S. at 87, 83 S.Ct. at

1196-97; Harm v. State, 183 S.W.3d 403, 406 (Tex.Crim.App. 2006). There can be no Brady

violation without the suppression of favorable evidence. Harm, 183 S.W.3d at 406. Moreover,

the court in Harvard v. State held that the Brady rule applies to a situation in which exculpatory

evidence is known to the State, but unknown to the defendant.              800 S.W.2d 195, 204

(Tex.Crim.App. 1989)(explaining that no Brady violation exists if the facts are known or

discoverable by the defendant).

       Brady establishes three requirements that a defendant must meet to establish reversible

error: (1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith;

(2) the withheld evidence is favorable to him; 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. Pena v. State, 353 S.W.3d 797, 809 (Tex.Crim.App. 2011), citing Hampton v.

State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002).

                                                      -14-
       Where, as here, the evidence is disclosed during trial, the materiality question turns on

whether the defendant was prejudiced by the delayed disclosure. See Yates v. State, 941 S.W.2d

357, 364 (Tex.App.--Waco 1997, pet. ref'd). Furthermore, when previously withheld evidence is

disclosed at trial, the defendant has an opportunity to request a continuance. See id.; Losoya v.

State, 636 S.W.2d 566, 571 (Tex.App.--San Antonio 1982, no pet.). The failure to request a

continuance waives any Brady violation, as well as any violation of a discovery order. Taylor v.

State, 93 S.W.3d 487, 502 (Tex.App.--Texarkana 2002, pet. ref’d); Lindley v. State, 635 S.W.2d

541, 544 (Tex.Crim.App. 1982); Yates, 941 S.W.2d at 364; Losoya, 636 S.W.2d at 571.

                         Motion for Mistrial Based on Brady Violations

       In his third issue, E.O.E. contends that the trial court erred in denying his motion for

mistrial based on alleged Brady violations. Specifically, he asserts that the State intentionally

withheld photographs created by Kathy Serrano, the State’s DNA expert witness. Because he

did not move for a continuance, he has waived his complaint.

       In Wallace v. State, 458 S.W.2d 67, 70-71 (Tex.Crim.App. 1970), the court held that the

defendant could not complain on appeal about the suppression of evidence where he was aware

of the material before the jury retired. In a similar case, the Court of Criminal Appeals noted that

the defendant made no request for a continuance following the disclosure of allegedly

exculpatory evidence during trial. See Juarez v. State, 439 S.W.2d 346 (Tex.Crim.App. 1969).

Here, E.O.E. properly objected to the photographs and then moved for a mistrial, but he failed to

request a continuance. By not requesting a continuance, he made the tactical decision to proceed

with the trial, aware of the previously undisclosed evidence. Hence, he cannot now credibly

complain that the State’s late disclosure essentially placed the “whole case in such a different

light as to undermine our confidence in the verdict.” We further note that the court struck

Serrano’s testimony, including the exhibit which contained the photographs, before the

                                                      -15-
photographs were even admitted into evidence or shown to the jury. The trial court also properly

instructed the jury to disregard all of Serrano’s testimony. Under such circumstances, even had

E.O.E. moved for a continuance, we find no reversible error occurred. We overrule Issue Three.

                    Motion for New Trial Based on Prosecutorial Misconduct

       Finally, E.O.E. contends that the trial court erred in denying his motion for new trial

based on prosecutorial misconduct. This argument appears to be based upon: (1) the State’s

failure to investigate Officer Moreno’s unrelated 2008 involvement in an on-duty civilian

shooting as well as (2) the State’s exclusion of Serrano’s photographs from her report, as

discussed in Issue Three. He insists that such actions by the State constitute Brady violations.

       A defendant must properly preserve a complaint for prosecutorial misconduct or it is

forfeited. Bautista v. State, 363 S.W.3d 259, 263 (Tex.App.--San Antonio 2012); TEX.R.APP.P.

33.1(a). To preserve error, a defendant must make a timely and specific objection during trial,

request an instruction by the trial court to disregard the matter improperly presented before the

jury, and move for mistrial. Bautista, 363 S.W.3d at 262-63. Here, E.O.E. properly objected to

and preserved both arguments. The arguments raised in Issue Four ultimately allege that the

State’s acts were “so pronounced and persistent that [they] deprived [E.O.E.] of a fair trial as the

jury was influenced by what they heard.” We disagree.

       We perceive no error. Nothing regarding Officer Moreno’s involvement in the 2008 on-

duty shooting rises to the level of a Brady violation. E.O.E. counters that a Brady violation

occurred because the 2008 incident constituted exculpatory information regarding impeachment.

This incident in no way constitutes evidence that would tend to exculpate this juvenile. In fact,

the State complied with the trial court’s order and all of E.O.E.’s discovery requests for any law

enforcement disciplinary actions related to his particular case. It was ultimately determined that

Officer Moreno misstated the classification of the legal status of his 2008 lawsuit during his

                                                     -16-
initial testimony at trial. Further testimony elicited during the bill of review revealed that there

were no criminal charges filed; that Officer Moreno complied with the investigation conducted

by the Internal Affairs; no disciplinary actions were imposed on Moreno; and the case was

dismissed with prejudice. Accordingly, E.O.E. was not adversely affected in his ability to

effectively cross-examine Officer Moreno.

       E.O.E. has also failed to show how he was prejudiced by Serrano’s photographs. As

already discussed in Issue Three, the trial court properly struck all of Serrano’s testimony,

including the exhibit which contained the photographs, and instructed the jury to disregard.

These actions cured any prejudice that may have resulted. Moreover, as we previously noted in

Issue Three, even if Appellant could demonstrate a Brady violation regarding Serrano’s

photographs, he waived it by failing to request a continuance. Because the trial court did not err

in denying the motion for a new trial, we overrule Issue Four and affirm the judgment of the trial

court below.


May 5, 2016
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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