Opinion filed December 21, 2017




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-15-00318-CR
                                  __________

            CHRISTOPHER STEVEN PAINTER, Appellant
                                       V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 238th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR42813


                     MEMORANDUM OPINION
      The jury convicted Christopher Steven Painter of sexual assault. TEX. PENAL
CODE ANN. § 22.011(a)(1) (West Supp. 2017). The jury assessed his punishment at
confinement for ten years. Appellant presents five issues on appeal. We affirm.
      In Appellant’s first issue, he argues that the evidence is insufficient to sustain
his conviction because there was insufficient evidence to prove that Appellant used
force or that the victim was unable to comprehend or resist the assault. In his second
issue, Appellant contests the constitutionality of Section 22.011(b)(4) of the Texas
Penal Code, which he argues is unconstitutional both on its face and as applied to
his case. In Appellant’s third issue, he argues that the trial court erred when it
permitted a SANE nurse who examined the victim to testify as to what the victim
told her about the assault. In his fourth issue, Appellant argues that the trial court
erred when it permitted the victim’s mother to testify as to whether she believed that
the victim was “capable of understanding the nature of what Appellant had done.”
In Appellant’s fifth issue, he contends that the State violated Brady v. Maryland, 373
U.S. 83 (1963), and Article 39.14(h) of the Texas Code of Criminal Procedure when
it did not provide a report to defense counsel that had been written by one of the
State’s witnesses.
      In Appellant’s first issue, he argues that the evidence was insufficient to
sustain his conviction because the State did not prove Appellant “used force . . . in
committing the act of sexual assault” or “that the complainant did not have the ability
to consent.” To prove the offense of sexual assault under Section 22.011(a)(1)(A),
the State must show that the defendant “intentionally or knowingly . . . cause[ed] the
penetration of the anus or sexual organ of another person by any means, without that
person’s consent.” PENAL § 22.011(a)(1)(A).
      Section 22.011(b) provides in relevant part that an assault under subsection
(a)(1) is without the consent of the other person if the defendant (1) “compels the
other person to submit or participate by the use of physical force, violence, or
coercion” or (2) “knows that as a result of mental disease or defect the other person
is at the time of the sexual assault incapable either of appraising the nature of the act


                                           2
or of resisting it.” PENAL § 22.011(b)(1), (4). In this case, the trial court included
in the jury charge a “without the consent of the other person” instruction that tracked
the language in Section 22.011(b)(1) and (b)(4). Appellant argues that, because the
State did not prove that he used force to commit the assault and because the evidence
was insufficient “to show [Jimmy] Edwards’[s] mental disability was so severe that
he was incapable of appraising the nature of the act,” the jury could not have found
Appellant guilty.
      We review the sufficiency of the evidence, whether denominated as a legal or
a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).              Evidence is
insufficient under this standard in four circumstances: (1) the record contains no
evidence probative of an element of the offense; (2) the record contains a mere
“modicum” of evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute
the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex. App.—
Eastland 2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11, 320).
      Appellant lived at MARC, a residential care facility in Midland for people
with intellectual disabilities. In order to qualify to be a resident at MARC, one must
have an IQ of 70 or below or have an unrelated condition, such as autism or
Asperger’s syndrome.      Appellant qualified to live at MARC because he was


                                           3
diagnosed with Asperger’s syndrome. Jimmy Edwards also lived at MARC because
he had an IQ below 70. Edwards’s room was connected to Appellant’s room by an
adjoining bathroom.
      On January 21, 2014, Nicole Applin, a caregiver at MARC, went to residents’
rooms to “check” on them before the end of her shift. After Applin did not see
Appellant in his room, she went to Edwards’s room where she saw Edwards and
Appellant “having sexual intercourse.” Applin testified that she heard Edwards say
to Appellant, “[O]uch, . . . you’re hurting me,” and that Edwards sounded like he
was in pain. Applin said that Appellant was not wearing any clothes and that
Edwards was wearing a T-shirt and shorts that had been pulled down. Appellant
then said, “[I]t’s not what it looks like,” and “ran into the . . . restroom” to retrieve
his clothes.
      Donna Doyle, a SANE nurse at Midland Memorial Hospital, testified that she
examined Edwards after the assault. Doyle said that, when she asked Edwards why
he was at the hospital for an exam, Edwards responded, “He in [sic] my bed. He
hurt me.” Edwards then “made a motion to his bottom.” Doyle testified that
Edwards continued to tell her what happened and said, “I told he [sic] to go to his
room. He pulled my shorts down. I told him to go. . . . He ignore [sic] me. . . . [H]e
put in [sic] my butt.” Doyle also testified that Edwards had an abrasion on his anus,
which was “consistent with what [Edwards] told [her] had occurred.”
      Edwards’s roommate at the time, Shawn Mercer, testified that he was in their
room at the time of the assault. Mercer testified that, when Appellant came into
Mercer’s and Edwards’s room that night, Appellant told Mercer that “[h]e was going
to hurt [Mercer] if [he] told.” Mercer testified that, when Edwards and Appellant
were in the bed together, Mercer heard Edwards “holler.”




                                           4
      Edwards’s mother testified that she and her husband adopted Edwards when
he was a baby. She said that Edwards had various developmental problems as a
child and explained why Edwards lived at MARC. She said that, the last time
Edwards was tested, his “skill level” was that of a second- or third-grader. She also
testified that she did not believe that Edwards “was capable of understanding the
nature of what was happening to him at the hands of” Appellant.
      Appellant argues that the State did not prove that Appellant used force when
he assaulted Edwards. Appellant also argues that the State did not present any
evidence as to whether Edwards consented to the contact. Additionally, Appellant
argues that the State did not prove that “Edwards’[s] mental disability was so severe
that he was incapable of appraising the nature of the act.”
      The jury, as the trier of fact, was the sole judge of the credibility of the
witnesses and of the weight to be given their testimony. TEX. CODE CRIM. PROC.
ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). As such, the jury was entitled
to accept or reject any or all of the testimony of any witness. Adelman v. State, 828
S.W.2d 418, 421 (Tex. Crim. App. 1992). Furthermore, the jury was entitled to draw
reasonable inferences from the evidence. Jackson, 443 U.S. at 319. When the record
supports conflicting inferences, we presume that the factfinder resolved the conflicts
in favor of the verdict and, therefore, defer to that determination. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).            Additionally, “circumstantial
evidence is as probative as direct evidence in establishing . . . guilt.” Hooper v.
State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).
      Edwards’s statements to Doyle after the assault—that he told Appellant “to
go to his room” and that Appellant “ignore[d]” him, “pulled [his] shorts down,” and
“hurt” him—were evidence that Appellant “compel[led Edwards] to . . . participate
by the use of physical force [or] violence.” See PENAL § 22.011(b)(1). Additionally,


                                          5
Applin’s testimony that Edwards said, “[O]uch, . . . you’re hurting me,” and that
Edwards sounded like he was in pain, as well as Mercer’s testimony that he heard
Edwards “holler,” is evidence that Appellant used force, violence, or coercion to
commit the assault.
      Furthermore, Edwards’s mother’s testimony—that she did not believe that
Edwards “was capable of understanding the nature of what was happening to him”
and that Edwards had the “skill level” of a second- or third-grader—was evidence
that Edwards was not able to appraise the nature of what happened or resist it due to
his mental disease or defect. We hold that a rational juror could have found beyond
a reasonable doubt that Appellant sexually assaulted Edwards without his consent,
either by force or because Appellant knew that Edwards was not able to appraise the
nature of the act or resist it due to his mental disease or defect. We hold that the
evidence was sufficient to find Appellant guilty of sexual assault. Appellant’s first
issue is overruled.
      In Appellant’s second issue, he argues that Section 22.011(b)(4) of the Texas
Penal Code is unconstitutional both on its face and as applied to him. We note that,
although Appellant filed a pretrial motion to determine the statute unconstitutional,
he did not raise a constitutionality challenge during or after trial. A defendant cannot
use a pretrial motion to raise an “as applied” challenge. State ex rel. Lykos v. Fine,
330 S.W.3d 904, 910 (Tex. Crim. App. 2011). “An ‘as applied’ challenge is brought
during or after a trial on the merits, for it is only then that the trial judge and
reviewing courts have the particular facts and circumstances of the case needed to
determine whether the statute . . . has been applied in an unconstitutional manner.”
Id. Therefore, we hold that Appellant did not raise an “as applied” constitutional
challenge at trial and, thus, did not preserve an “as applied” challenge for review in
this court. TEX. R. APP. P. 33.1; see Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex.


                                           6
Crim. App. 2008) (holding that it is a “well-established requirement that [an]
appellant must preserve an ‘as applied’ constitutional challenge by raising it at
trial”); see also Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (citing
Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994) (holding that an “as
applied” due process challenge is not preserved for appeal if an appellant does not
raise a “specific, timely objection” at trial)).
       Appellant challenges the facial constitutionality of Section 22.011(b)(4) on
two grounds: (1) under the Equal Protection Clause of the Fourteenth Amendment
of the United States Constitution and (2) under the Due Process Clause of the
Fourteenth Amendment. U.S. CONST. amend. XIV, § 1. When we review the
constitutionality of a statute, we presume that the statute is valid and that the
legislature did not act unreasonably or arbitrarily when it enacted the statute. Ex
parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Delesandri v. State,
No. 11-13-00321-CR, 2015 WL 6511118, at *4 (Tex. App.—Eastland Oct. 22, 2015,
no pet.) (mem. op., not designated for publication).
       The party who challenges the constitutionality of a statute bears the burden to
establish that it is unconstitutional. Peraza v. State, 467 S.W.3d 508, 514 (Tex.
Crim. App. 2015). To sustain a facial challenge, the party must show that the statute,
by its terms, operates unconstitutionally in all possible circumstances. Id. at 514–
15; In re S.N., 292 S.W.3d 807, 810 (Tex. App.—Eastland 2009, no pet.). Whether
a statute is facially unconstitutional is a question of law that we review de novo. Ex
parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
       As we have discussed above, Section 22.011(b)(4) provides that a sexual
assault is without the consent of the other person if the defendant “knows that as a
result of mental disease or defect the other person is at the time of the sexual assault
incapable either of appraising the nature of the act or of resisting it.” PENAL


                                             7
§ 22.011(b)(4). Appellant contends that Section 22.011(b)(4) violates the Equal
Protection Clause because Appellant and Edwards “were part of the same class of
individuals that the [statute] is designed to protect” but that they were not treated
equally because “only Appellant was charged with sexual assault.” Appellant argues
that there is no rational basis for treating him and Edwards differently. Appellant
argues that Section 22.011(b)(4) also violates the Due Process Clause because it
deprives “adults with mental disabilities” the “right to private sexual conduct.” He
cites Lawrence v. Texas, 539 U.S. 558 (2003), for the proposition that “[o]ur laws
and traditions afford constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing, and
education.”
      When we examine a facial challenge to a statute under the Equal Protection
Clause and the Due Process Clause, we must first determine whether the right that
Appellant identifies—the right of adults to engage in private consensual sexual
conduct, including when one adult cannot “appraise” or “resist” the conduct due to
“mental disease or defect”—is a fundamental one in constitutional jurisprudence,
which requires less deference to the State’s rationale for enacting a statute that
prohibits such conduct. See, e.g., Toledo v. State, 519 S.W.3d 273, 279–83 (Tex.
App.—Houston [1st Dist.] Apr. 6, 2017, pet. ref’d). “A fundamental right or liberty
interest is one that is ‘deeply rooted in this Nation’s history and tradition’ and
‘implicit in the concept of ordered liberty.’” Id. at 280 (quoting Chavez v. Martinez,
538 U.S. 760, 775 (2003)).
      In Lawrence, the United States Supreme Court held that the Fourteenth
Amendment’s Due Process Clause affords consenting adults the right to engage in
private sexual relationships free from government intrusion. 539 U.S. at 578. The
Court in Lawrence, however, did not hold that that right is absolute, nor did the Court


                                           8
describe it as a “fundamental right.” See Toledo, 519 S.W.3d at 280–81. As our
sister court noted, “the Supreme Court recognized that the liberty interest that it
recognized did not extend to sexual conduct involving prostitution, minors, or . . .
‘persons who might be injured or coerced or who are situated in relationships where
consent might not be easily refused.’” Id. at 281 (quoting Lawrence, 539 U.S. at
578). We hold that Section 22.011(b)(4) does not implicate a “fundamental right.”
      If an equal protection challenge to a statute does not involve a fundamental
right, the statute does not violate the Equal Protection Clause “so long as unequal
treatment of persons is based upon a reasonable and substantial classification of
persons.” Vasquez v. State, 739 S.W.2d 37, 43 (Tex. Crim. App. 1987). “[A]
statutory classification that does not discriminate against a suspect class need only
be rationally related to a legitimate governmental purpose to survive an equal
protection challenge.” Ex parte Morales, 212 S.W.3d 483, 500 (Tex. App.—Austin
2006, pet. ref’d) (citing Henderson v. State, 962 S.W.2d 544, 560 (Tex. Crim. App.
1997)).
      Facially, Section 22.011(b)(4) does not discriminate against any suspect class;
Section 22.011(b)(4) prohibits any individual from engaging in sexual conduct with
another person whom the individual knows cannot “apprais[e] the nature of” such
conduct or “resist[] it” due to “mental disease or defect.” See City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (limiting definition of
“suspect class” to race, alienage, and national origin). Thus, we will evaluate
Appellant’s challenge to Section 22.011(b)(4) under the Equal Protection Clause to
determine if it is “rationally related to a legitimate governmental purpose.” Morales,
212 S.W.3d at 500. Likewise, we will uphold the constitutionality of a statute that
affects an interest that is not a fundamental right under the Due Process Clause if the
statute bears a rational relationship to a legitimate governmental interest. See


                                          9
Cleburne, 473 U.S. at 440; Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d
504, 525 (Tex. 1995).
      Courts have found multiple statutes that criminalize sexual conduct between
members of different groups to be constitutional because they are reasonable and are
a rational furtherance of a legitimate state interest. For example, the First Court of
Appeals held that Section 22.011(b)(11) of the Penal Code, under which a sexual
assault is without consent if “the actor is an employee of a facility where the other
person is a resident” unless they are married, is facially constitutional because “it
was enacted to protect the class of adults who reside in facilities, such as the elderly
and the mentally ill, from abuse by employees of the facilities in which they reside.”
Jimenez v. State, 419 S.W.3d 706, 715 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d). The First Court held that was a “legitimate government interest.” Id.
      The First Court of Appeals also held that Section 21.12 of the Penal Code,
which criminalizes sexual relationships between educators and students enrolled at
the same school in which the educator works, is facially constitutional because
“Texas has a rational interest in prohibiting” such conduct. Toledo, 519 S.W.3d at
281. Additionally, the First and Fourth Courts of Appeals, for example, have upheld
Section 22.011(a)(2)(A) of the Penal Code, which criminalizes sexual conduct
between adults and minors. See, e.g., Byrne v. State, 358 S.W.3d 745, 752 (Tex.
App.—San Antonio 2011, no pet.); Scott v. State, 36 S.W.3d 240, 242 (Tex. App.—
Houston [1st Dist.] 2001, pet. ref’d).
      Similarly, the State has a legitimate interest in the protection of individuals
who have a “mental disease or defect.” A prohibition against members of the general
public engaging in sexual conduct as described in subsection (a)(1) with individuals
whom a person knows is incapable of “appraising” or “resisting” such conduct due
to “mental disease or defect” is a rational means by which to achieve that interest.


                                          10
Therefore, we hold that Section 22.011(b)(4) does not facially violate the Equal
Protection Clause or the Due Process Clause of the Fourteenth Amendment.
Appellant’s second issue is overruled.
      In Appellant’s third issue, he argues that the trial court erred when it admitted
Doyle’s testimony regarding hearsay statements that Edwards made to Doyle. A
trial court has discretion to determine whether to admit or exclude hearsay evidence
as an exception to the hearsay rule. Vela v. State, No. 11-09-00210-CR, 2011 WL
1084795, at *1 (Tex. App.—Eastland 2011, pet. ref’d) (mem. op., not designated for
publication). We must review the trial court’s decision under an abuse of discretion
standard and may not reverse that decision unless it was so clearly wrong as to lie
outside the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579
(Tex. Crim. App. 2008); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.
2003).
      Appellant contends that Edwards’s statements to Doyle did not qualify as an
exception to the hearsay rule under TEX. R. EVID. 803(4) because “the State failed to
provide sufficient proof the victim knew to be truthful.” Rule 803(4) provides that
hearsay statements that meet the following criteria are not excluded by the hearsay
rule: “A statement that: (A) is made for—and is reasonably pertinent to—medical
diagnosis or treatment; and (B) describes medical history; past or present symptoms
or sensations; their inception; or their general cause.” TEX. R. EVID. 803(4); see
Vela, 2011 WL 1084795, at *1.
      “For a statement to be admissible under this exception, the declarant must
make the statement for the purpose of receiving medical treatment, and the content
of the statement must be such as is reasonably relied on by a physician in treatment
or diagnosis.” Vela, 2011 WL 1084795, at *1. The proponent of the evidence must
show that the out-of-court declarant was aware that the statements were made for


                                          11
the purpose of medical diagnosis or treatment and that proper diagnosis or treatment
depends upon the veracity of such statements. Taylor, 268 S.W.3d 588–89.
      The trial court allowed Doyle to testify that Edwards told her, “He in [sic] my
bed. He hurt me,” and that Edwards then “made a motion to his bottom.” Doyle
also stated that Edwards told her, “I told he [sic] to go to his room. He pulled my
shorts down. I told him to go. . . . He ignore [sic] me. . . . [H]e put in [sic] my butt.”
      Doyle testified that she examined Edwards at Midland Memorial Hospital and
that she tells examinees that she is a nurse. Doyle explained that she “rel[ies] upon
the truth . . . of the statements of the patient, relating to their condition[,] for the
purpose of diagnosing and treating the patient.” Doyle further testified that these
statements are “important information” that she uses “for the purpose of a medical
diagnosis or treatment.” Because of Edwards’s statements to her, Doyle performed
a “head-to-toe exam” to find trauma, as well as an anal exam and a penile exam.
      The circumstances under which Doyle examined Edwards are circumstances
that the trial court could reasonably view as indicating that Edwards would have
known that he needed to be truthful when he answered her questions in order to
obtain proper medical care. We hold that the trial court did not abuse its discretion
when it concluded that Doyle’s testimony was admissible over Appellant’s hearsay
objections under Rule 803(4) of the Texas Rules of Evidence. See, e.g., Martinez v.
State, No. 01-15-00823-CR, 2016 WL 6803233, at *11–12 (Tex. App.—Houston
[1st Dist.] Nov. 17, 2016, pet. ref’d) (mem. op., not designated for publication)
(holding that the appellant did not show abuse of discretion where the trial court
admitted the statements a victim made about an assault to a pediatric nurse practioner
under Rule 803(4)); Segura v. State, No. 05-15-00032-CR, 2015 WL 8273712, at
*3–4 (Tex. App.—Dallas Dec. 8, 2015, no pet.) (mem. op., not designated for
publication) (concluding that trial court did not abuse its discretion when it admitted


                                           12
the statements a victim made to a SANE nurse based on Rule 803(4)). Appellant’s
third issue is overruled.
      In his fourth issue, Appellant argues that the trial court erred when it admitted
Edwards’s mother’s testimony that she did not believe that Edwards was “capable
of understanding the nature of what Appellant had done.” Rule 701 provides that a
witness who testifies in the form of opinions or inferences and who does not testify
as an expert is limited to those opinions or inferences that are “rationally based on
the witness’s perception.” TEX. R. EVID. 701. Rule 701 incorporates Rule 602’s
personal knowledge requirement, “which states that a witness may not testify to a
matter unless he or she has personal knowledge of the matter.” Osbourn v. State, 92
S.W.3d 531, 535 (Tex. Crim. App. 2002); see TEX. R. EVID. 602. Rule 701 requires
the testimony to be based on the witness’s perception, so it is “necessary that the
witness personally observed or experienced the events about which he or she is
testifying.” Id. “[A]s a general rule, observations which do not require significant
expertise to interpret and which are not based on a scientific theory can be admitted
as lay opinions if the requirements of Rule 701 are met.” Id. at 537.
      Appellant argues that, because Edwards’s mother “was not present during the
incident between Appellant and” Edwards, “she cannot have personal knowledge to
know what was going on in her son’s mind when the act occurred.” We disagree
that a witness must personally observe an incident in order to testify about some
aspect of it under Rule 701. See Tobar v. State, No. 14-15-00011-CR, 2016 WL
2975568, at *6 (Tex. App.—Houston [14th Dist.] May 19, 2016, no pet.) (mem. op.,
not designated for publication) (holding that a witness’s opinion about how an
assault victim suffered injuries was admissible under Rule 701, even though the
witness did not observe the assault).




                                          13
      Appellant also argues that Edwards’s mother “lack[ed] the expertise to give
such an opinion of her son’s overall mental capacity.” However, Edwards’s mother
testified that she adopted Edwards when he was a baby and that she was aware of
Edwards’s developmental problems and his “skill level.” She also said that she and
her husband saw Edwards every weekend while he lived at MARC. Edwards’s
mother had personally observed Edwards’s mental capabilities throughout his life.
We hold that the trial court did not abuse its discretion when it admitted Edwards’s
mother’s testimony that she did not believe Edwards was “capable of understanding
the nature of what Appellant had done” as lay opinion testimony under Rule 701.
Appellant’s fourth issue is overruled.
      In Appellant’s fifth issue, he argues that the State withheld evidence from
defense counsel in violation of Brady. See Brady, 373 U.S. 83. Specifically,
Appellant contends that the State withheld a report that Gloria Plattsmier, at that
time a nurse at MARC, wrote after she examined Edwards. Appellant also contends
that the State’s failure to provide Plattsmier’s report to defense counsel violated
Article 39.14(h) of the Texas Code of Criminal Procedure. CRIM. PROC. art. 39.14(h)
(West Supp. 2017).
      Plattsmier testified that she was a nurse at MARC at the time of the assault
and that she examined Edwards that night. She said that she did not find any signs
of trauma during the examination. On cross-examination, Plattsmier testified that
she “did a written report, and MARC has the report.” She said that she did not know
whether the report had been turned over to law enforcement.
      Appellant argues that the State’s failure to provide Plattsmier’s report to
defense counsel violated Brady. The State has an affirmative duty under the Due
Process Clause to disclose exculpatory or impeachment evidence that is material to
guilt. See United States v. Bagley, 473 U.S. 667, 677 (1985); see also Brady, 373


                                         14
U.S. at 87; Thomas v. State, 841 S.W.2d 399, 407 (Tex. Crim. App. 1992).
Favorable evidence is “material” if there is a reasonable probability that the result of
the proceeding would have been different if the evidence had been disclosed to the
defense. Thomas, 841 S.W.2d at 404.
      Similarly, under Article 39.14(h), the State must “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 punishment for the offense charged.” CRIM.
PROC. art. 39.14(h). When the evidence is disclosed during trial, however, the
materiality question turns on whether the defendant was prejudiced by the delayed
disclosure. Williams v. State, 995 S.W.2d 754, 761–62 (Tex. App.—San Antonio
1999, no pet.).
      Furthermore, when previously withheld evidence is disclosed at trial, the
defendant has an opportunity to request a continuance. Id. at 762. A defendant’s
failure to request a continuance waives any Brady violation. Young v. State, 183
S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref’d); Gutierrez v. State, 85 S.W.3d
446, 452 (Tex. App.—Austin 2002, pet. ref’d); Williams, 995 S.W.2d at 762.
Likewise, a defendant’s failure to request a continuance also waives any violation
under Article 39.14(h). See O’Kane v. State, No. 04-16-00526-CR, 2017 WL
3159462, at *3 (Tex. App.—San Antonio July 26, 2017, no pet.) (mem. op., not
designated for publication) (“By failing to file a written, sworn motion for
continuance, [the defendant] failed to preserve error” based on the State’s failure to
comply with Article 39.14(h).); see also Prince v. State, 499 S.W.3d 116, 120–21
(Tex. App.—San Antonio 2016, no pet.) (same).
      Appellant failed to request a continuance at any time after Plattsmier disclosed
on cross-examination that she had made a written report. Therefore, even if we


                                          15
assume without deciding that the State had a duty to disclose the challenged
evidence, Appellant waived any violation of Brady as well as any violation of
Article 39.14(h). Appellant’s fifth issue is overruled.
      We affirm the judgment of the trial court.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


December 21, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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