Affirmed and Memorandum Opinion filed October 31, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00616-CR

                 DENEISHIA Y. WASHINGTON, Appellant,

                                        V.
                      THE STATE OF TEXAS, Appellee.

                On Appeal from the County Court at Law No. 1
                             Fort Bend County
                   Trial Court Cause No. 10-CCR-151432

                    MEMORANDUM                      OPINION

      A jury found appellant Deneishia Y. Washington guilty of criminal trespass
and the trial judge assessed punishment at 180 days in jail, probated for 12 months.
In a single issue, Washington challenges her conviction on the grounds that the
State violated its duty of disclosure under Brady v. Maryland, 373 U.S. 82 (1963),
depriving her of her right to due course of law under the Fourteenth Amendment to
the United States Constitution and article I, section 19, of the Texas Constitution.
We affirm.
                                              I

      Preston Ousley, a Stafford Police Department detective, works a second job
as a security officer at the Camden at Sugar Grove apartments. On July 29, 2010,
while Ousley was patrolling the property, he encountered a man and a woman
engaged in a loud argument. The man was a resident of the apartment complex,
but the woman, later identified as Washington, was not. When Ousley asked for
identification, Washington incorrectly identified herself as Brittney Johnson.
Ousley asked Washington to leave the property because the resident stated that she
was not his guest and he did not want her to remain on the property. Ousley
further explained to Washington that she needed to leave immediately and that she
could not return. Later that day, Ousley sent an email to the apartment property
manager reporting the encounter with Washington. Ousley discovered Washington
on the apartment complex property again on August 9, 2013. On that date, Ousley
observed Washington creating a disturbance on the property and reported her to the
Stafford Police Department as a trespasser.

      An on-duty Stafford police officer was dispatched to the complex. When he
arrived, he found Washington hiding behind a vehicle in the parking lot. He
arrested her for criminal trespass.

      On cross-examination, Ousley admitted that when speaking with the
arresting officer on August 9, he gave the wrong date of the initial warning as
August 4, 2013, not July 29, 2013. Ousley testified that he provided a copy of his
email to the property manager, which was sent on the day of the initial warning, to
the State. Washington objected that the email was Brady material and had been
improperly withheld. The court ruled that the email was not subject to disclosure
under Brady, and informed Washington’s attorney that he could ask Ousley about
the contents of the email. Washington asked Ousley whether he had a copy of the

                                         2
email with him in court and to whom he sent the email. Ousley responded that he
did not have a copy with him and he sent the email to Louise Crawford, the
apartment’s property manager. Ousley then testified that he instructed Washington
to leave the property and that if she did not leave she “could and would be arrested
for trespassing.”

         Following the testimony of the arresting officer, Washington’s attorney
presented a bill of exception. In response, the State’s attorney read the contents of
the email into the record. The email is dated July 30, 2013, and provides, “At 4:45
a.m. I broke up a verbal domestic dispute Larocca V. Dalcoe, Apartment 827 and
his ex-girlfriend Brittney C. Johnson, nonresident. They were in a parking lot in
front of Building A arguing.” Washington argued that the email was not disclosed
until trial and that disclosure “could have helped the defense in preparation of their
case.”

                                               II

         In a single issue Washington argues that the State’s non-disclosure of
“material impeachment evidence,” in violation of Brady v. Maryland, deprived her
of her due-process rights under the United States and Texas constitutions.
Specifically, Washington complains that the State did not disclose a hard copy of
the email Ousley sent to the property manager.

         Suppression by the prosecution of evidence favorable to a defendant violates
due process if the evidence is material either to guilt or punishment, without regard
to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. at 87;
Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). An appellant must
satisfy three requirements to establish a Brady violation: (1) the State suppressed
evidence, (2) the suppressed evidence is favorable to the appellant, and (3) the
evidence is material. Harm, 183 S.W.3d at 406. We analyze an alleged Brady
                                           3
violation “in light of all the other evidence adduced at trial.” Hampton v. State, 86
S.W.3d 603, 612–13 (Tex. Crim. App. 2002).

      On cross-examination, Washington asked Ousley if he had given a copy of
the email to the State. Ousley responded that he had given it to the State, at which
time Washington complained that the email was Brady material that had not been
disclosed.   The prosecutor, defense counsel, and the court then engaged in a
discussion about whether the email was exculpatory and whether the State was
required to disclose it.   At the conclusion of this discussion, the following
occurred:

      MR. WRIGHT [Defense counsel]: But it can clearly solve this date
      discrepancy, and they didn’t disclose it.
      THE COURT: I don’t think there’s a problem with disclosure. I’m
      going to ask you to please proceed; and as far as the importance of
      that document, you can ask him what it said.
      MR. TORRES [Defense counsel]: Okay.
      THE COURT: But as far as throwing up a big stink about not having
      it in the record and it was turned over, I don’t see that as an issue so
      you can go ahead and do it.
      MR. WRIGHT: On a break, can we read a bill of exception into the
      record for appeals purposes?
      THE COURT: Sure.
      MR. WRIGHT: Okay. Thank you, Judge.

      Washington contends the email was favorable to her (1) because the date on
which it was sent contradicted the first date on which Ousley reported he had given
Washington an initial warning, and (2) the email fails to specify that Ousley
warned Washington not to return.

      Favorable evidence is any evidence that, if disclosed and used effectively,
may make a difference between conviction and acquittal and includes both

                                         4
exculpatory and impeachment evidence. Harm, 183 S.W.3d at 408. Impeachment
evidence is evidence that disputes, disparages, denies, or contradicts other
evidence. Pena v. State, 353 S.W.3d 797, 812 (Tex. Crim. App. 2011).

      To obtain Washington’s conviction for criminal trespass, the State was
required to prove that appellant entered or remained on the property and (1) had
notice that the entry was forbidden or (2) received notice to depart, but failed to do
so. Tex. Penal Code. § 30.05.

      Washington first argues that the date listed on the email would aid in
impeachment of Ousley because he mistakenly told the Stafford police officer that
he initially warned Washington on August 4, 2013, not July 29, 2013.              But
Washington did not need the email to question Ousley on the mistaken date;
Ousley admitted his mistake.

      Washington further argues that “there is no specific mention, discussion, or
description of a verbal trespassing warning having been issued to the Appellant in
Ousley’s email. This, despite Ousley’s testimony that his email described what
happened during his first encounter with the Appellant.” To the extent the absence
of a specific mention of a verbal trespassing warning contradicts Ousley’s
testimony that he gave a verbal warning, the email is evidence favorable to
appellant.

      To succeed in her Brady claim, Washington must also show there is a
reasonable probability that, “in light of all the evidence, it is reasonably probable
that the outcome of the trial would have been different had the prosecutor made a
timely disclosure.” Hampton v. State, 86 S.W.3d at 612. “The mere possibility
that an item of undisclosed information might have helped the defense, or might
have affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” United States v. Agurs, 427 U.S. 97, 109–10; see Pena, 353
                                          5
S.W.3d at 812.

      On direct examination, Ousley testified that he explained to Washington that
she needed to leave the property, that she could not return, and that she would be
arrested for trespassing if she returned. Washington told Ousley that the resident
she had been arguing with owed her money and that she was possibly the victim of
a criminal act. Ousley gave Washington a Stafford Police Department business
card with his name and phone number and told her if she needed help in addressing
a potential criminal matter, she should contact him at the police department, but
she was still required to leave the property.       Ousley testified that when he
explained to Washington that she would be arrested if she returned to the property,
she replied, “okay.” Ousley watched Washington walk to her car and drive off the
property.

      On cross-examination, Ousley testified that on the date of the initial warning
he sent an email to the property manager. Ousley further testified that he told
Washington that she had to leave the property, she could not return even if a
resident invited her to return, and if she returned she would be arrested for
trespassing. Ousley testified that he could not repeat the entire conversation he had
with Washington, but “when it came to the warning of trespassing, it’s always the
same. So, yeah, I can remember that part for sure.” Washington questioned
Ousley as to why he did not write the warning on the back of his business card, but
Ousley had no response.

      On re-direct, Ousley explained that whenever he is on duty at the apartment
complex, he makes an incident report in the form of an email to the property
manager “describing any incidents I had on a particular night or when I would
patrol the property or any incidents that I responded to where I was called or
observed.” During closing argument, Washington emphasized the missing email

                                          6
by pointing out that the State failed to admit the email into evidence:

       Let’s talk about the E-mail that Detective Ousley referenced. Where
       is it? Where is it? Where’s the paper trail for the date? Wasn’t here.
       State didn’t give it to you, it wasn’t put into evidence. Where’s that
       paper trail? That would have solved a lot of your questions, a lot of
       my questions; but they didn’t bring that today. That’s doubt in my
       book.

       Washington argues that the email was material for the impeachment of
Ousley. At the time Washington cross-examined Ousley she knew of the email’s
existence and questioned him about sending the email and to whom he sent it.
Washington did not question Ousley on the content of the email, which the trial
court specifically permitted. Rather, Washington emphasized the fact that the State
failed to introduce the email into evidence to bolster her argument. Washington
vigorously cross-examined Ousley and attempted to impeach his credibility during
cross-examination.

                                                 ***

       After examining the entire trial court record, we cannot conclude that the
State’s disclosure of a hard copy of the email would probably have changed the
trial’s outcome. We overrule Washington’s sole issue and affirm the judgment of
the trial court.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).
                                             7
