                                     NUMBERS
                                   13-13-00372-CR
                                   13-13-00373-CR
                                   13-13-00374-CR
                                   13-13-00375-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


DAVID ALLEN RUSSELL,                                                         Appellant,

                                                v.

THE STATE OF TEXAS,                                                            Appellee.


                       On appeal from the 199th District Court
                             of Collin County, Texas.


                  MEMORANDUM OPINION ON REHEARING

    Before Chief Justice Valdez and Justices Garza and Benavides
     Memorandum Opinion on Rehearing by Chief Justice Valdez

       We withdraw our opinion and judgments in these cause numbers and substitute

this memorandum opinion and accompanying judgments in their place. Appellant, David

Allen Russell, was convicted of one count of sexual assault of a child, two counts of sexual
assault, and three counts of indecency with a child regarding the victims, M.C., M.H.,

H.B., and E.L. By two issues, appellant contends that he was denied due process of law

by the State’s failure to turn over exculpatory evidence, which tainted the four cases, and

that “the State suborned perjury in failing to turn over exculpatory evidence and then

elicit[ed] testimony that the exculpatory evidence directly contradicted.” We affirm.

                                          I.      BACKGROUND1

        Appellant was a chiropractor with several patients who were young dancers from

his girlfriend’s dance studio. Some of appellant’s patients, including some of the dancers,

testified that appellant had touched their vaginas, inserted his finger in their vaginas, and

touched their breasts. Appellant was tried in one proceeding for all of the causes, and all

of the victims testified at this consolidated trial. The jury convicted appellant of several of

the charged offenses.           In appellate cause number 13-13-00372-CR, appellant was

convicted of one count of sexual assault of a child, and one count of indecency with a

child by contact.2 Appellant received fifteen years for the sexual assault of a child charge

and eight years for the indecency with a child by contact charge.3 The trial court ordered

the sexual assault of a child charge to run concurrently with the charges in the other

causes and the indecency with a child charge to run consecutively. In appellate cause

number 13-13-00373-CR, appellant was convicted of one count of sexual assault, and he




        1 This case is before the Court on transfer from the Fifth Court of Appeals in Dallas pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
        2In this cause, appellant was found guilty of penetrating M.C.’s female sexual organ with his finger
and by touching her breasts with his hand.
        3   The jury acquitted appellant of a second indecency with a child by contact charge as to M.C.


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received a concurrent ten-year sentence.4 In appellate cause number 13-13-00374-CR,

appellant was convicted of one count of indecency with a child by contact, and he was

sentenced to a concurrent twelve-year sentence.5 In appellate cause number 13-13-

00375-CR, appellant was convicted of one count of sexual assault and received a

concurrent ten-year sentence.6

        Appellant filed a motion for new trial alleging that the State had withheld

exculpatory and/or impeaching evidence and that the prosecutor had engaged in

misconduct. The trial court held a hearing on appellant’s motion for new trial, and the

motion was denied by operation of law. This appeal followed.

                                     II.     STANDARD OF REVIEW

        We review a trial court's denial of a motion for new trial for an abuse of discretion.

McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012); State v. Gonzalez, 855

S.W.2d 692, 696 (Tex. Crim. App. 1993) (“The decision on a motion for new trial rests

within the sound discretion of the trial court, and in the absence of an abuse of discretion

this [C]ourt would not be justified in reversing the judgment.”). A trial court has broad

discretion when assessing the credibility of the witnesses and in weighing the evidence

when determining whether a different result would occur upon retrial. Messer v. State,

757 S.W.2d 820, 827–828 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d).




        4In this cause, the jury found appellant guilty of sexually assaulting M.H. by penetrating her sexual
organ with his finger without her consent.
        5 The jury convicted appellant of indecency with a child by touching H.B.’s genitals with his hand.

The jury acquitted appellant of one count of aggravated sexual assault of H.B., a child.
        6 The jury convicted appellant of sexually assaulting E.L. by penetrating her sexual organ with his
finger without her consent. The jury acquitted appellant of two counts of indecency with a child regarding
E.L.


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             In Brady [v. Maryland, 373 U.S. 83 (1963)] the United States
      Supreme Court concluded 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. Appellant must satisfy three requirements to establish
      a Brady violation: (1) the [S]tate suppressed evidence; (2) the suppressed
      evidence is favorable to defendant; and (3) the suppressed evidence is
      material. Incorporated into the third prong, materiality, is a requirement that
      defendant must be prejudiced by the state's failure to disclose the favorable
      evidence.

             The Supreme Court subsequently extended Brady and held that the
      duty to disclose such evidence is applicable even if there has been no
      request by defendant, and that the duty to disclose encompasses both
      impeachment and exculpatory evidence. This duty also requires disclosure
      of favorable evidence known only to the police. Consequently, prosecutors
      have a duty to learn of Brady evidence known to others acting on the state’s
      behalf in a particular case. It is irrelevant whether suppression of the
      favorable evidence was done willfully or inadvertently.

Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006) (internal citations omitted).

                                III.   PERTINENT FACTS

      At appellant’s trial, E.L. testified that appellant had committed the alleged acts of

penetrating her vagina with his finger when she sought treatment from him after a car

accident in October 2005. E.L. claimed that she had sought treatment from appellant

after the October 2005 car accident “at least one or two times a week for at least two

months.” It was during this period that E.L. alleged appellant started to touch her under

her pants, put his hand on her vagina under her panties, and he put his finger inside her

to “adjust her.” E.L. was twenty when these alleged incidents occurred. Appellant points

out that E.L. stated that appellant’s records regarding E.L.’s treatment, including the

records from the 2005 car accident, were missing or altered and that other witnesses

testified that their records had also been altered, were missing, or incomplete. E.L.

testified that after reviewing her chart from appellant’s practice, she was surprised that



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her “October 2005 accident is missing.” She said, “They have records from 1998 to 2006

or ’7, and even treatment in August of 2005 is listed but my accident in October is not.

Additionally, there on the back page for some reason, was a photo of me taped to the

inside of my chart, a prom photo of me and my friend that I went to the prom with.”7 E.L.’s

testimony reflects that the only time that appellant penetrated her vagina with his finger

was when she sought treatment from him after the October 2005 car accident.

       Appellant states in his brief that after his trial, E.L.’s civil attorney, Lance Baxter,

told appellant’s trial counsel that Baxter had been approached by the State to obtain

documents to verify E.L.’s claim that she sought treatment from appellant in October 2005

after the car accident. According to appellant, Baxter stated that “he found his Stowers

letter and provided that document to the State while the trial was ongoing.” Specifically,

Baxter recalled giving the letter to an investigator named “Bowers.”

       According to appellant, once Baxter relayed that information to his trial counsel,

his trial counsel immediately texted, emailed, and phoned the assistant district attorney,

Shannon Miller, about the letter. The State concedes that, during the trial, it received the

letter but it did not provide it to appellant’s trial counsel.

       After appellant was convicted, the trial court held a hearing on appellant’s motion

for new trial to determine whether the State withheld Brady information, if any, by failing

to disclose Baxter’s letter. At the hearing, Baxter testified that “based upon his Stowers

letter, [E.L.] was not treated by [appellant] for injuries suffered in the car accident in




       7   E.L. claimed that neither she nor her parents recalled giving appellant that picture.


                                                           5
2005.”8 Baxter further testified that he would have testified for either the State or the

defense at appellant’s trial had appellant’s defense counsel known about him.

        Miller testified that she was the prosecutor in this case and that she received an

email from Investigator Bowers on April 16, 2013 regarding their initial conversation to

obtain Baxter’s letter. Miller stated that she received a copy of the Baxter letter on April

16, 2013 during her cross-examination of a witness. Miller related that Investigator

Bowers “whispered in her ear that the information [in the Baxter letter] did not show

anything about Appellant.”9 And, she admitted that she did not review the Baxter letter

until the trial concluded and that she never disclosed the existence of the letter to

appellant’s trial counsel. Bowers testified that Baxter never told him that the absence of

appellant’s name in the letter indicated that E.L. was not treated by appellant after the

October 2005 car accident. According to Bowers, Baxter told him to check other sources

for documentation of E.L.’s treatment after her October 2005 accident.

                                         IV.      BRADY VIOLATION

        By his first issue, appellant complains that the State became aware of Baxter’s

letter during his trial and that it contains Brady material. The letter did not mention

appellant; moreover, at the motion for new trial hearing, Baxter testified that he had

prepared the letter in order to document E.L.’s medical bills incurred after the accident



        8    Appellant’s attorney asked, “And did you advise [Bowers] that based upon your review of your
file, that . . . —that [E.L.] did not treat with [appellant] for any car accident in 2005?” Baxter replied, “That’s
what I told him, yes.”
        9  It is undisputed that the letter does not mention appellant. Although the letter is not included in
the reporter’s record, as appellant has pointed out in his motion for rehearing, the letter was attached to his
motion for new trial and was included in the Clerk’s record. We note that at the motion for new trial hearing,
the letter was referred to as “Exhibit Number 1,” but it was not listed as an exhibit by the court reporter. We
have reviewed the letter, and it does not mention appellant; therefore, our analysis does not change. After
reviewing appellant’s motion for rehearing and the State’s response, we deny the motion for rehearing.


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and that, because the letter did not include appellant as a medical provider that indicated

E.L. had not been treated by appellant after the October 2005 accident.

       Appellant argues that his Brady violation claim is meritorious because he showed

the following: (1) the State failed to disclose evidence, regardless of the prosecutor’s

good or bad faith; (2) the undisclosed evidence constitutes exculpatory or impeachment

evidence that is favorable to him; (3) if disclosed and used effectively, the evidence may

make a difference between conviction and acquittal; and (4) the evidence is material, that

is, presents a reasonable probability that, had the evidence been disclosed, the outcome

of the proceedings would have been different. See Pena v. State, 353 S.W.3d 797, 807–

09 (Tex. Crim. App. 2011).

       The State conceded at the motion for new trial hearing and concedes on appeal

that it failed to disclose the Baxter letter. However, in order to meet his burden appellant

had to show that the letter constituted favorable evidence and that it would have made a

difference in the outcome of his trial. Appellant argues that the Baxter letter, combined

with Baxter’s testimony that E.L. would have informed him of the treatment from appellant

if it had occurred, makes the evidence exculpatory and/or impeachment evidence that is

favorable to him and that had it been disclosed, if used properly and effectively, it would

have made a difference between being convicted and being acquitted.

       Appellant states that a theme presented by the State at trial was that some of his

patients’ records were missing including testimony by E.L. that her records were missing

regarding the 2005 accident and that his trial counsel testified that he would have used

the Baxter letter and called Baxter as a witness had the letter been disclosed by the State.

Specifically, appellant’s trial counsel testified he would have used the letter during cross-



                                                 7
examination of E.L. to show that she was not telling the truth and to support appellant’s

position that E.L. never received treatment from appellant after the October 2005

accident—the time period wherein she claims he committed the act that the jury found

constituted sexual assault. Appellant also points out that other witnesses claimed that

the records were altered or fabricated.        Appellant argues that “[t]he evidence was

favorable” to him because the letter “strengthens” his defense that E.L. had not been

treated by appellant after the October 2005 accident.

       The State responds that the letter was not favorable to appellant’s defense

because it did not state that E.L. did not receive any treatment from appellant after the

October 2005 accident. The State argues that the letter is not impeaching because it

does not dispute, disparage, deny, or contradict other evidence. The State claims that

the letter merely showed that Baxter did not list the treatment from appellant as a cost in

E.L.’s October 2005 car accident. In addition, the State points out that no one had

informed any State agents that Baxter stated that if the accident was not listed in his letter,

then that meant that E.L. did not receive treatment.

       We agree with the State. Although Baxter testified at the motion for new trial

hearing that he told Bowers that the letter meant that E.L. never received treatment from

appellant in October 2005, Bowers contradicted Baxter’s testimony by stating that during

appellant’s trial, Baxter did not inform him that that is what the letter meant. The trial court

is the finder of fact, and when contradictory evidence is presented, the trial court must

determine what evidence to believe. Bell v. State, 256 S.W.3d 465, 468 (Tex. App. 2008)

(“At a hearing on a motion for new trial, a trial court as finder of fact is free to believe or

disbelieve the testimony of any witness, even if the testimony is uncontroverted.”) (citing



                                                  8
Keeter v. State, 74 S.W.3d 31, 38 (Tex. Crim. App. 2002); Purchase v. State, 84 S.W.3d

696, 700 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)). Thus, the trial court was free

to believe Bower’s testimony, to disregard Baxter’s testimony, and to conclude that the

State was not in possession of any evidence that the letter meant that E.L. had not

received treatment from appellant after her October 2005 accident. See Messer, 757

S.W.2d at 827–28; see also Bell, 256 S.W.3d at 468. Thus, the record supports a finding

that the State did not possess knowledge that Baxter would testify that the letter meant

that E.L. had not received treatment from appellant. See Harm, 183 S.W.3d at 407

(“Brady and its progeny do not require prosecuting authorities to disclose exculpatory

information to defendants that the State does not have in its possession and that is not

known to exist.”). In addition, the trial court may have concluded that Baxter did not have

personal knowledge of what medical treatment E.L. had after her October 2005 accident

based on his testimony that he relied on her to tell him about all of the medical providers

she saw and his acknowledgment that she could have failed to tell him about appellant’s

treatment.10 See Pena, 353 S.W.3d at 814 (“The State does not have a duty to disclose

favorable, material evidence if it would be inadmissible in court.”).

       Moreover, the letter did not itself establish that E.L. did not receive treatment from

appellant. And, Baxter testified that he only included those medical charges that E.L. had

told him about. Thus, the letter by itself is not exculpatory. See Harm, 183 S.W.3d at

408 (“Exculpatory evidence may justify, excuse, or clear the defendant from fault, while

impeachment evidence is that which disputes or contradicts other evidence.”). The letter

merely established that E.L. sought treatment from certain medical providers after her


       10   Appellant did not call E.L. to testify at his motion for new trial hearing.


                                                             9
accident and failed to mention appellant. Because the letter does not mention appellant,

it does not dispute or contradict E.L.’s testimony that she sought treatment from appellant

after her October 2005 car accident.11 And, Baxter acknowledged that there were other

possible reasons that appellant was not listed in the letter. It was undisputed that E.L.

had been treated by appellant on other occasions in 2005 and that he had treated her

after she had been involved in another car accident.12 Therefore, the trial court may have

reasonably inferred that E.L. may have been mistaken about the date, that E.L. had not

informed Baxter about the treatment, or that E.L. had been treated by appellant for an

injury unrelated to the October 2005 car accident and was confused.13 Thus, we conclude

that appellant did not show that the letter was favorable to him. Therefore, the trial court

did not abuse its discretion by denying appellant’s motion for new trial. We overrule

appellant’s first issue.14


         11 As previously mentioned, the trial court could have determined that when the State acquired the

letter, Baxter had not informed the State that the letter meant E.L. had not been treated by appellant after
the October 2005 accident.
        12 It is also undisputed that E.L. sought treatment from appellant starting at the age of approximately
twelve and ending at approximately the age of twenty-two or twenty-three. The years were 1998 until 2008,
“on and off.” During cross-examination of E.L., appellant’s trial counsel said that E.L. had been treated by
appellant twenty-six times after she began working for appellant. Appellant’s trial counsel stated, “While
you [E.L.] were employed there, you saw him nine times in June of ‘02, one time in July, and you didn’t see
him any in August. So, you know, another 10 to 12 times while you are employed. So you are talking 40—
you know, 35, 40 times that you were in his office or that you were adjusted or seen by him?” E.L. began
working for appellant sometime in May 2002, and she turned seventeen on June 7, 2002.
        13At appellant’s trial, E.L. testified that she “experience[d] some short-term memory loss after the
car accident because of the extensive damage to the car, my injuries, and the amount of medication that I
was on, consequently.”
         14 By a sub-issue to his first issue, appellant contends that the Brady violation of failing to disclose

the letter affects the other cases against him. Appellant argues that because the State consolidated the
four cases against him, they were intrinsically intertwined, thus causing him harm in all the cases. Appellant
claims that the State’s theory that records were missing due to appellant’s tampering was bolstered by
E.L.’s testimony, and that if the jury had heard about the letter in conjunction with Baxter’s testimony, he
could have rebutted that theory. However, because we have concluded that the trial court did not abuse
its discretion in concluding that no Brady violation occurred, we need not address this issue as it is not
dispositive. See TEX. R. APP. P. 47.4.


                                                           10
                             V.     PROSECUTORIAL MISCONDUCT

         By his second issue, appellant contends that the prosecutor committed misconduct

by offering E.L.’s perjured testimony because the prosecutor was aware that E.L. had not

been treated by appellant after the October 2005 car accident. Appellant relies on

Baxter’s statement that the letter meant that E.L. had not received treatment from

appellant after her October 2005 car accident. However, because the trial court may have

believed Bower’s testimony that he was not aware of Baxter’s statement when the

prosecutor received the letter, we cannot conclude that the trial court abused its discretion

by denying appellant’s motion for new trial on that basis. We overrule appellant’s second

issue.

                                     VI.    CONCLUSION

         We affirm the trial court’s judgments.

                                                         /s/ Rogelio Valdez
                                                         ROGELIO VALDEZ
                                                         Chief Justice

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

Delivered and filed the
9th day of April, 2015.




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