Opinion issued June 20, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-12-00855-CR
                           ———————————
                 PATRICK LEE CAMPBELL, JR., Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 122nd District Court
                          Galveston County, Texas
                      Trial Court Cause No. 10CR3689


                         MEMORANDUM OPINION

      A jury convicted Patrick Lee Campbell, Jr. of aggravated robbery. See TEX.

PENAL CODE ANN. § 29.03 (West 2011). The trial court assessed punishment at

fifty years’ confinement. On appeal, Campbell contends that the trial court abused

its discretion by denying his motion for new trial based upon exculpatory
information, namely an in-car video from the arresting officer’s car that was not

disclosed until near the end of the State’s case-in-chief, in violation of Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Finding no abuse of discretion, we

affirm.

                                   Background

      Campbell and two others robbed Jose Varela and his mother, at gunpoint, at

Varela’s mother’s house. After the robbery, the assailants fled on foot. The police

arrived, began pursuit, and blocked nearby streets. As the police monitored cars

entering and leaving the area, an officer noticed a car stop in an alley where the

fleeing suspects were last seen. Another officer followed the car when it left the

alley. After noticing that the car’s inspection sticker was expired, he stopped the

car. Campbell was an occupant. Another officer brought Varela’s mother to the

scene. She identified Campbell as one of the men who had robbed her and her son

that night. The officer then arrested Campbell.

      Near the end of the State’s case-in-chief, the State first disclosed the

existence of an in-car video, retrieved from the arresting officer’s police car. The

video depicted Campbell’s arrest. The State produced the video to Campbell for

review, noting that it would not object to Campbell introducing it. Campbell’s

counsel reviewed the video, declined to introduce it, and stated that he had no

objection to proceeding to closing arguments.


                                         2
                                     Discussion

      On appeal, Campbell contends that the trial court abused its discretion by

denying his motion for new trial, based upon the State’s untimely production of the

video. He maintains that the late disclosure, near the end of the presentation of the

State’s case, deprived him of an adequate opportunity to cross-examine the State’s

witnesses in violation of his constitutional rights. See Brady, 373 U.S. at 87, 83 S.

Ct. at 1196–97.

Standard of Review

      We review a trial court’s ruling on a motion for mistrial or motion for new

trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim.

App. 2007). We view the evidence in a light 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)). 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. Charles v. State, 146 S.W.3d 204,

208 (Tex. Crim. App. 2004).

      In Brady, the United States Supreme Court held that the suppression of

evidence favorable to a defendant violates his due process rights, if the evidence is

material either to guilt or punishment without regard to the good or bad faith of the

prosecution. Brady, 373 U.S. at 87, 83 S. Ct. at 1196–97; Wyatt v. State, 23 S.W.3d


                                          3
18, 27 (Tex. Crim. App. 2000). To establish a Brady violation, a defendant must

show: (1) the State suppressed evidence; (2) the suppressed evidence is favorable

to defendant; and (3) the suppressed evidence is material. Little v. State, 991

S.W.2d 864, 866 (Tex. Crim. App. 1999); Thomas v. State, 841 S.W.2d 399, 402–

03 (Tex. Crim. App. 1992) (citing Moore v. Illinois, 408 U.S. 786, 794–95, 92 S.

Ct. 2562, 2568 (1972)). Materiality, the third prong, requires that the State’s failure

to disclose the favorable evidence prejudice the defendant. Banks v. Dretke, 540

U.S. 668, 691, 124 S. Ct. 1256, 1272, 157 L.Ed.2d 1166 (2004).

      If, as in this case, the potential Brady material is produced to the defense

during trial, rather than after the trial is completed, we determine whether the

defendant was prejudiced by the late disclosure. Palmer v. State, 902 S.W.2d 561,

565 (Tex. App.—Houston [1st Dist.] 1995, no writ). A defendant is not prejudiced

by a late disclosure of Brady evidence if the defendant receives the material in time

to put it to effective use at trial. Id. (citing United States v. McKinney, 758 F.2d

1036, 1050 (5th Cir. 1985)). If, procedurally, the defendant can still introduce the

evidence, and recall witnesses to examine them about it, then the defendant is not

prejudiced by its untimely disclosure. Id.; see also United States v. Decker, 543

F.2d 1102, 1105 (5th Cir. 1976) (holding that government fulfilled its disclosure

duty by disclosing impeachment evidence after witness testified but while still

subject to recall). A failure to request a continuance after disclosure of Brady


                                           4
evidence during trial also indicates that the late disclosure was not prejudicial.

State v. Fury, 186 S.W.3d 67, 73–74 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d).

          In Palmer, the prosecution disclosed potential Brady evidence during trial.

Palmer, 902 S.W.2d at 565. But because the defendant could still introduce the

evidence and could recall the witnesses who had already testified to examine them

about the contradictory evidence, the late disclosure did not prejudice the

defendant. Id.

          Similar to the facts in Palmer, in this case, the State disclosed the in-car

video before concluding its case-in-chief. See Palmer, 902 S.W.2d at 565.

Campbell does not contend that he could not recall the witnesses proffered in the

State’s case. See id. Rather, Campbell expressly declined to introduce the video,

did not seek to recall any of the State’s witnesses, and did not request a

continuance after the disclosure. See id. Accordingly, we hold that the trial court

acted within its discretion in determining that Campbell was not prejudiced by the

late disclosure of the in-car video. See id.; Fury, 186 S.W.3d at 74.

                                      Conclusion

          We hold that the trial court did not abuse its discretion in denying

Campbell’s motion for new trial, because it reasonably could have concluded that




                                            5
Campbell was not prejudiced by the untimely disclosure of Brady evidence. We

therefore affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           6
