                                                                            ACCEPTED
                                                                        06-15-00112-CR
                                                             SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                  12/21/2015 6:55:02 PM
                                                                       DEBBIE AUTREY
                                                                                 CLERK

               No. 06-15-00112-CR

         IN THE COURT OF APPEALS
                                                       FILED IN
                                                6th COURT OF APPEALS
                   FOR THE                        TEXARKANA, TEXAS
                                                12/22/2015 8:40:00 AM
     SIXTH JUDICIAL DISTRICT OF TEXAS                DEBBIE AUTREY
                                                         Clerk


              JEROME ANDERSON,

                                    Appellant

                       V

              THE STATE OF TEXAS

                                    Appellee


  APPEALED FROM THE 71st DISTRICT COURT

         HARRISON COUNTY, TEXAS

       TRIAL COURT CAUSE #12-0427X


                BRIEF OF STATE


                           COKE SOLOMON
                           CRIMINAL DISTRICT ATTORNEY
                           HARRISON COUNTY, TEXAS
                           P.O. BOX 776
                           MARSHALL, TEXAS 75671
                           (903) 935-8408

        BY:    SHAWN ERIC CONNALLY
               ASSISTANT CRIMINAL DISTRICT ATTORNEY
               BAR #24051899
               ATTORNEY FOR THE STATE


APPELLEE DOES NOT REQUEST ORAL ARUGMENT

                       i
                                  No. 06-15-00112-CR

                               JEROME ANDERSON
                                         Appellant

                                          V

                              THE STATE OF TEXAS
                                         Appellee

                __________________________________________

                NAMES OF ALL PARTIES AND ATTORNEYS
                __________________________________________

      The names and identifying information of all parties and attorneys were

correctly stated in Appellant’s brief.




                                          ii
                                         TABLE OF CONTENTS


NAMES OF ALL PARTIES AND ATTORNEYS .................................................. ii

INDEX OF AUTHORITIES.............................................................................. iv-viii

PRELIMINARY STATEMENT OF THE NATURE OF THE CASE ..................... 1

         STATE’S REPLY ISSUE ONE: …………………………….……1

         STATE'S REPLY ISSUE TWO……………………………….…..1

         STATE'S REPLY ISSUE THREE…………………………………2

STATEMENT OF THE FACTS ............................................................................... 2

ARGUMENTS AND AUTHORITIES ..................................................................... 5
    SUMMARY OF THE ARGUMENT REPLY ISSUE ONE ........................... 5
       ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE.............. 5
    SUMMARY OF THE ARGUMENT REPLY ISSUE TWO…………...….16
       ARGUMENTS AND AUTHORITIES REPLY ISSUE TWO……...16
    SUMMARY OF THE ARGUMENT REPLY ISSUE THREE ………...…26
       ARGUMENTS AND AUTHORITY REPLY ISSUE THREE…..…26

PRAYER .................................................................................................................. 41

CERTIFICATE OF SERVICE ................................................................................ 41




                                                            iii
INDEX OF AUTHORITIES


CASES:

Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964)………………….6

Lincoln v. State, 307 S.W.3d 921, 922 (Tex.App.-Dallas 2010, no pet.)………...6-7

Garcia v. State, 13-09-00650-CR (Corpus Christi, unpublished opinion, 2010)...6-7

Breazeale v State, 683 S.W.2d 446, 450-51 (Tex.Crim.App.1984)…………...…6-7

Osteen v. State, 642 S.W.2d 169, 171 (Tex.Crim.App. 1982)…………………..…7

Brooks v. State, 06-03-00073, Texarkana unpublished opinion, 2004)…………....7

Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003)……………………….8

Blount v State, 64 S.W.3d 451, 457 (Tex.App.-Texarkana 2001, no pet.)……...….9

Hernandez v State, 387 S.W.3d 881, 888 (Tex.Crim.App. 2012)……………....9-12

Leza v. State, 351 S.W.3d 344, 349 (Tex.Crim.App. 2011)………………………..9

Gonzales v. State, 369 S.W.3d 851, 852 (Tex.Crim.App. 2012)……………….…10

Lampkin v. State, 470 S.W.3d at 895 (Tex.App.-Texarkana 2015)…………...10-13

Delao v. State, 235 S.W.3d 235, 238 (Tex.Crim.App. 2007)……………………..10

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.ct. 1602, 16 L.Ed.2d 694
(1966)………………………………………………………………………….10-12

Coffey v. State, 435 S.W.3d 834, 841 (Tex.App.-Texarkana 2014, pet. ref’d)…...10

Hutchinson v. State, 424 S.W.3d 164, 175 (Tex.App.-Texarkana 2014, no pet.)...10

                                       iv
Joseph v. State 309, S.W.3d 20, 23 (Tex.Crim.App. 2010)………………..….11-14

Watson v State, 762 S.W.2d 591, 601 (Tex.Crim.App.1988)…………………….12

North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286
(1979)………………………………………………………………………….12-13

Berghuis v. Thompkins, -U.S.-, 130 S.Ct. 2250, 2261, 176 L.Ed.2d 1098
(2010)………………………………………………………………………….13-14

Ford v. State, 305 S.W.3d 530, 533 (Tex.Crim.App. 2009)……………….….17-18

Lankston v. State, 827 S.W.2d 907, 911 (Tex.Crim.App. 1992)………………….18

Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002)…………………..…18

Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990)……………………...18

Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995)…………………....18

Garza v. State, 453 S.W.3d 548, 554 (Tex.App.-San Antonio 2014, pet. ref’d)….19

Osbourn v. State, 59 S.W.3d 809, 815 (Tex.App.-Austin 2001, no pet.)…………19

Clay v. State, 390 S.W.3d 1, 15 (Tex.App-Texarkana 2012, pet. ref’d)……….…20

Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007)……………………..20

Gonzales v. State, 304 S.W.3d 838, 843 (Tex.Crim.App. 2010)………………….20

Harrison v. State, 187 S.W.3d 429 (Tex.Crim.App. 2005)…………………….…21

Tucker v. State, 109 S.W.3d 517, 520 (Tex.App.-Tyler 1999 pet. ref’d)…………22

Johnson v. State, 467 S.W.2d 247, 250 (Tex.Crim.App.1971)………………...…22

Edwards v. State, 185 S.W.2d 111, 112 (Tex.1945)……………………………...22

                                       v
Norton v. State, 564 S.W.2d 714, 716-17 (Tex.Crim.App.1978)…………………22

Maxwell v. State, 06-12-00194-CR (Texarkana, unpublished opinion Feb. 12,
2014)……………………………………………………………………………....23

Rodriguez v. State, 21 S.W.3d 562, 566 (Tex.App.-Houston [14th Dist.] 2000, no
pet.)………………………………………………………………………………..23

Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App. 1993)…………………….24

Latham v. State, 20. S.W.3d 63, 67 (Tex.App.-Texarkana 2000)………………...25

Gonzales v. State, 505 S.W.2d 819 (Tex.Crim.App.1974)………………………..25

Reese v. State, 905 S.W.2d 631, 636 (Tex.App.-Texarkana 1995, pet. ref’d,
untimely filed)………………………………………………………………….…25

James v. State, 997 S.W.2d 898, 901 n. 5 (Tex.App.—Beaumont 1999, no pet.)..26

Yarbrough v. State, 57 S.W.3d 611, 616 (Tex.App.-Texarkana 2001, no pet.)…..27

Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840 (Tex.1979)…27

In re Marriage of Murray, 15 S.W.3d 202, 204 n. 3 (Tex.App.—Texarkana 2000,
no pet.)…………………………………………………………………...………..27

Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet.
ref’d)……………………………………………………………….28, 31, 34, 37-38

Williams v. State, 995 s.W.2d 754, at 762 (Tex.App.-San Antonio 1999, no
pet.)………………………………………………………………………………..28

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)……..….28

Thomas v. State, 841 S.W.2d 399 (Tex.Crim.App.1992)……………...28-29, 36-38

Pena v State, 353 S.W.3d 797, 809 (Tex.Crim.App. 2011)…………...29-31, 37, 40

                                       vi
United States v. Bagley, 473 U.S 667, 105 S.Ct. 3375, 87 L.Ed.2d 481, 676
(1985)………………………………………………………………………….….29

Dalbosco v. State, 978 S.W.2d 236, 239 (Tex.App.-Texarkana 1998, pet. ref'd)...29

Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex.Crim.App.1997)………………….29

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)……29-30

United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed2d 342 (1976)….30, 38

Hampton v. State, 86 S.W.3d 603, 613 (Tex.Crim.App. 2002)…………………...30

Hafdahl v. State, 805 S.W.2d 396, 399 n. 3 (Tex.Crim.App. 1990)…………...…30

Harm v. State, 183 S.W.3d 403, 407 (Tex.Crim.App. 2006)……………………..31

Staten v. State, 919 S.W.2d 493, 498 (Tex.App.-Fort Worth 1996, pet. ref’d)…...31

Flores v. State, 940 S.W.2d 189, 191 (Tex.App.San Antonio 1996, no pet.)…….31

Williams v. State, 995 S.W.2d 754, 761–62 (Tex.App.-San Antonio 1999, no
pet.)………………………………………………………………………………..31

State v. Moore, 240 S.W.3d 324 (Tex.App.- Austin 2007, pet. ref’d)……………33

Shanks v. State, 13 S.W.3d 83, 86 (Tex.App.-Texarkana 2000, no pet.)………....33

Chandler v. State, 278 S.W.3d 70, 74 (Tex.App.-Texarkana 2009, no pet)…..36-37

Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.Crim.App. 1993)……………….…...37

Hampton v. State, 86 S.W.3d 603, 613 (Tex.Crim.App. 2002)…………………...37

Strickland v. Washington, 466 U.S.668, 696, 104 S.Ct. 2052, 90 L.Ed.2d 674
(1984)…………………………………………………………………………...…38

Ex Parte Mitchell, 977 S.W.2d 575, 578 (Tex.Crim.App. 1997)……………...….40
                                       vii
STATUTES AND AMENDMENTS:

TEX.R.APP.P.33.1 …………………………………………………………….....17

Article 38.22 § 6, TEXAS CODE OF CRIMINAL PROCEDURE………………..8

Article 38.22, § 2, TEXAS CODE OF CRIMINAL PROCEDURE……………...11

Article 38.22, § 3, TEXAS CODE OF CRIMINAL PROCEDURE……………...11

Article 29.06, TEXAS CODE OF CRIMINAL PROCEDURE…………………..21

Article 39.14, TEXAS CODE OF CRIMINAL PROCEDURE…………………..19

TEX.CODE.CRIM.PROC.ANN.art.39.14 (h) historical note [Act of May 14, 2013,
83rd Leg., R.S., ch. 49, Sec. 3, 2013 Tex. Sess. Law. Serv. 106,108]………….…19

Texas Government Code Section 602.002(2)……………………………………..21

Article 29.03, TEXAS CODE OF CRIMINAL PROCEDURE……………….….21

TEX.R.APP.P 34.1……………………………………………………………..…26




                                    viii
     PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

         Appellant preliminary statement of the case is correct.



                            STATE’S REPLY ISSUE ONE

         The trial court did not commit reversible error in admitting state’s

exhibit 16 and 17 (the custodial interview of the Appellant). The

requirements of article 38.22 of the Texas Code of Criminal Procedure were

met and the “totality of the circumstances surrounding the interrogation”

reveals both an uncoerced choice and the requisite level of comprehension to

conclude that the Appellant waived his rights under Miranda and Article

38.22.

                            STATES REPLY ISSUE TWO

         The trial court did not abuse its discretion in denying Appellant’s

motion for continuance. Appellant’s motion for continuance did not comply

with requirements of Article 29.06 and Appellant did not exercise due

diligence in securing the attendance of a witness for trial. Furthermore,

pursuant to Article 39.14 of the Texas Code of Criminal Procedure, the state

was under no duty to provide Appellant with a witness list, nor update that

information. There was no violation for failure to provide exculpatory

                                            1
information under Brady v. Maryland, nor was that alleged error preserved

for appellate review.

                         STATES REPLY ISSUE THREE

      The state did not commit a Brady violation. This issue was not properly

preserved for appellate review and assuming arguendo it was, the state: 1) did not

suppress or fail to disclose any exculpatory or mitigating evidence, 2) the evidence

was not favorable to the Appellant, and 3) the evidence was not material to the

Appellant. Also, in Appellant’s brief he writes issue number three deals with the

failure to disclose the identity of the confidential informant. (Appellant’s brief p.

2). However, issue number three is actually briefed as a Brady violation.

(Appellant’s brief p. 15). This is confusing to the author, so the state will limit

argument to Appellant’s alleged Brady violation.


                          STATEMENT OF THE FACTS

      The Marshall Police Department executed a search warrant on Appellant’s

residence on September 23, 2011 (RR Vol. 2, p. 33). This search warrant was

obtained by Officer Lynn Ames with the Marshall Police Department based on

information supplied by a confidential informant that observed Appellant in

possession of cocaine and marijuana. (RR Vol. 5, state’s ex. 1). After Appellant’s

arrest he was read his rights by Brody West, a narcotics investigator with the
                                           2
Marshall Police Department. (RR Vol. 1, p.169). The majority of the interview was

conducted by Investigator Joe Bounds with the Harrison County District

Attorney’s Office (RR Vol. 1, p. 170). Appellant was read his rights, understood

those rights, and voluntarily waived his rights. (RR Vol. 1, p.170). Appellant then

proceeded to confess to being in possession of the cocaine that was found in his

residence (RR Vol. 5, state’s ex. 16-17).

      Two and a half years later, Appellant’s trial counsel filed a motion for

continuance three days before trial for want of a witness, namely, Brody West, and

violation of article 39.14 on April 24, 2015, three days before trial. (CR. Vol. 1, p.

108-110). The trial court heard Appellant’s motion for continuance before the trial

began and it was denied. (RR Vol. 2, p 15-28). Brody West was described by

Appellant’s counsel as a “key witness” (RR Vol. 2, p. 15). Appellant’s counsel was

the first person to bring to the trial court’s attention that Brody West was

“exculpatory” and “I believe he’s got some history that would be relevant to this

case for many reasons. (RR Vol. 2, p. 17-18). It was “long known” that Brody

West no longer worked for the Marshall Police Department. (RR Vol. 2, p. 16).

Appellant’s trial counsel had known the state was not going to call Brody West

from the filing of the first state’s witness list (RR Vol. 2, p. 16, 20). During the

motion for continuance and throughout the trial it was brought to the court’s

                                            3
attention (either by way of argument to the trial court or testimony of two

witnesses) that potential witness, Brody West, was under Federal investigation.

(RR Vol. 2, p. 92-96, 104-105, 174-178). The state was unaware of what Brody

West was being charged with other than what had been reported in the newspaper,

and had no information regarding how the federal investigation was related to

Appellant’s case. (RR Vol. 2, p. 27). Appellant waited until the 5 days before trial

to issue a subpoena for Brody West. (RR Vol. 2, p. 16). Brody West was never

served with a subpoena, nor called as a witness.

      Appellant was tried and convicted and given a 15 year prison sentence. (CR

Vol. 1(A) p.4-5). A motion for new trial was heard on July 13, 2015 in which

Appellant alleged “new evidence” and re-urged denial of his motion for

continuance. (RR Vol. 4, p. 4-6). Again, Brody West was neither subpoenaed nor

called as a witness by Appellant at his motion for new trial, and no additional

evidence was offered related to the Federal investigation of Brody West.




                                          4
                      ARGUMENTS AND AUTHORITIES

             SUMMARY OF THE ARGUMENT REPLY ISSUE ONE

         The trial court did not commit reversible error in admitting state’s

exhibit 16 and 17 (the custodial interview of the Appellant). The

requirements of article 38.22 of the Texas Code of Criminal Procedure were

met and the “totality of the circumstances surrounding the interrogation”

reveals both an uncoerced choice and the requisite level of comprehension to

conclude that the Appellant waived his rights under Miranda and Article

38.22.



            ARGUMENTS AND AUTHORITIES REPLY ISSUE ONE

     It is undisputed in this case that after Appellant was placed under arrest he

was subjected to a custodial interrogation. It is also undisputed that the Appellant

was read his rights according to Article 38.22, § 2 of the Texas Code of Criminal

Procedure. Appellant’s argument is succinctly that law enforcement never obtained

an “explicit or implied waiver” of those rights under Article 38.22, § 3 before

proceeding with the interrogation. The state disagrees with Appellant’s conclusion

that the Appellant did not waive his rights under Miranda and Article 38.22.




                                            5
     The state, in its ethical duty, feels it is necessary to address (though not

objected to, nor briefed as a points of error by the Appellant) two issues; first, that

the record is silent as to whether the Appellant pled “not guilty” to the indictment

and second, that there is not a statement on the record from the trial judge that

state’s trial exhibits 16 and 17 were officially “admitted” as exhibits.

     “It is well settled in this state that a plea must be entered in every criminal

case and if no plea is entered, the trial is a nullity, since there is no issue for the

jury or the court.” Lumsden v. State, 384 S.W.2d 143, 144 (Tex.Crim.App. 1964)

(See also Lincoln v. State, 307 S.W.3d 921, 922 (Tex.App.-Dallas 2010, no pet.)

and Garcia v. State, 13-09-00650-CR (Corpus Christi, unpublished opinion, 2010).

An examination of the record is silent as to whether or not the Appellant pled not

guilty. However, the judgment indicates Appellant pled “not guilty” to the

indictment. (CR. Vol. 1(A), p. 4-5). Recitals in a judgment create a “presumption

of regularity and truthfulness” and these recitals are binding unless there is direct

proof of their falsity. Lincoln at 922 (citing Breazeale v State, 683 S.W.2d 446,

450-51 (Tex.Crim.App.1984). A second presumption operates in these

circumstances as well: unless the record affirmatively shows the contrary, our

appellate rules require us to presume [the defendant] pleaded to the indictment.

Lincoln at 922. See. TEX.R.APP. P. 44.2(c)(4). Like the defendant in Lincoln, here

                                             6
Appellant took the position he was not guilty, and Appellant’s counsel even asked

the trial court for a judgment of acquittal and, in lieu of that, the minimum sentence

of 15 years (RR Vol. 3, p. 6-7), which the trial court ultimately did do.

      There is nothing in the appellate record to indicate that the appellant did not

plea not guilty. A silent record will not suffice as an affirmative showing and thus

will not overcome presumptions of regularity. Lincoln at 932 (citing Breazeale,

683 S.W.2d at 450) (see also Osteen v. State, 642 S.W.2d 169, 171 (Tex.Crim.App.

1982)). When a judgment contains a recital … “the burden is on the accused to

establish otherwise, if she claims the contrary is true.” Lincoln at 924 (citing

Breazeale, 683 S.W.2d at 451). Appellant does not assert that he never entered a

plea, and the record does not affirmatively refute that he did not enter a plea,

therefore it must be presumed that Appellant pled to the indictment. See also

Brooks v. State, 06-03-00073, Texarkana unpublished opinion, 2004).

     Secondly, there was an objection lodged when state’s 16 and 17 were offered.

(RR Vol. 2, p. 172). The trial court said it would review the videos and if it

determined that the evidence was not admissible, that the court would not consider

it. (RR Vol 2, p.173). Later before assessing Appellant’s sentence, the trial court

stated it reviewed the exhibits and based on its review then proceeded to dictate

into the record its findings of fact and conclusions of law that the Appellant waived

                                           7
his rights before speaking with law enforcement, afterwards no further objection or

comment was raised by Appellant’s trial counsel (RR Vol. 3, p. 9), the state would

argue this would serve as a de facto overruling of Appellant’s objection and that

the evidence was properly admitted. Furthermore, the trial court went further and

stated even should the evidence have been improperly admitted and considered, it

still believed the evidence was sufficient to support a finding of the Appellant’s

guilt based on the remainder of the evidence presented by the state. (RR. Vol. 3, p.

9-10). Appellant never obtained an adverse ruling on his objection to state’s

exhibits 16 and 17, and therefore such matters are not properly preserved for

appellate review. In order to preserve error in admitting evidence, a party must

make a proper objection and secure a ruling on that objection. See

TEX.R.APP.P.33.1; see also Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.

2003).

     As stated previously, the trial court dictated (albeit briefly) its findings of fact

and conclusions of law into the record in this case. (RR. Vol. 3 p. 9) and while

there was no formal separate written findings of fact and conclusions of law issued

by the trial court, this Appellate Court has agreed with several of its sister courts’

that when findings of fact and conclusions of law are dictated into the appellate

record without objections, that sufficient compliance with Article 38.22 § 6 is

                                            8
obtained. See Blount v State, 64 S.W.3d 451, 457 (Tex.App.-Texarkana 2001, no

pet.). Should this Court believe that the dictated findings of fact and conclusions of

law are inadequate to make an ultimate legal determination, the state would argue

that the Court of Criminal Appeals has ruled that there is support for the

proposition that there must first be a disputed fact issue and evidence presented on

that issue in order for abatement and remand to be necessary. See Hernandez v

State, 387 S.W.3d 881, 888 (Tex.Crim.App. 2012). Here, as in the Hernandez case,

the facts of the custodial interrogation are not in dispute. The point in dispute is

whether a waiver of Appellant’s Miranda and Article 38.22 rights can be implied

under those facts. Since this is an issue involving a mixed question of law and fact,

this Court would review de novo, and more specific findings by the trial court

would be unnecessary. See Hernandez, 387 S.W.3d at 888. However, as previously

stated above, this issue was also never objected to, nor briefed as a point of error

by Appellant, only addressed by the state out of an abundance of caution.

      Moving on to Appellant’s point of error number one, Appellate courts defer

to the trial court’s determinations on historical facts and credibility, but review de

novo questions of law and mixed questions of law and fact not turning on

credibility assessments. Hernandez, 387 S.W.3d at 885 (citing Leza v. State, 351

S.W.3d 344, 349 (Tex.Crim.App. 2011). Viewing the evidence in the light most

                                           9
favorable to the trial court’s ruling, it will be upheld if it is correct under any

theory or law applicable to the case. Hernandez, 387 S.W.3d at 885 (citing

Gonzales v. State, 369 S.W.3d 851, 852 (Tex.Crim.App. 2012)). A trial court’s

decision on this matter will only be overturned on appeal where a flagrant abuse of

discretion is shown. Lampkin v State, 470 S.W.3d 876, 891 (Tex.App.-Texarkana

2015) (citing Delao v. State, 235 S.W.3d 235, 238 (Tex.Crim.App. 2007).

     The state concedes that Appellant was under arrest at the time of his interview

and any statements made are the result of custodial interrogation. Prior to any

questioning, the person must be warned that he has a right to remain silent, that any

statement he does make may be used as evidence against him, and that he has the

right to the presence of an attorney. Lampkin v. State, 470 S.W.3d at 891 (citing

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.ct. 1602, 16 L.Ed.2d 694 (1966); see

also Coffey v. State, 435 S.W.3d 834, 841 (Tex.App.-Texarkana 2014, pet. ref’d).

Under both the Federal constitutional standard and the Texas Confession Statute,

evidence obtained as a result of a custodial interrogation is inadmissible unless the

state proves the officer gave proper warnings and shows an affirmative waiver of

rights by the accused. Coffey, 435 S.W.3d at 841 (quoting Hutchinson v. State, 424

S.W.3d 164, 175 (Tex.App.-Texarkana 2014, no pet.)).




                                            10
     Article 38.22, § 2 of the Texas Code of Criminal Procedure requires an officer

to warn a defendant that:

            (1) he has the right to remain silent and not make statement at all and

               that any statement he makes may be used as evidence against him at

               his trial

            (2) any statement he makes may be used as evidence against him in

               court;

            (3) he has the right to have a lawyer present to advise him prior to and

               during any questioning;

            (4) if he is unable to employ a lawyer, he has the right to have a

               lawyer appointed to advise him prior to and during any questioning;

            (5) he has the right to terminate the interview at any time

     As stated above, Appellant does not dispute that he was read his rights in

accordance with article 38.22 § 2 of the Texas Code of Criminal Procedure, only

that the defendant did not “waive” those rights under article 38.22, § 3 of the Texas

Code of Criminal Procedure.

     The state has the burden of establishing a knowing, intelligent, and voluntary

waiver of one’s rights under Miranda and Article 38.22. Hernandez, 387 S.W.3d at

885 (citing Miranda, 384 U.S. 436, 86 S.ct. 1602, 16 L.Ed.2d 694 (1966); Joseph

                                         11
v. State 309, S.W.3d 20, 23 (Tex.Crim.App. 2010)). Waiver must be proven by a

preponderance of the evidence. Hernandez, 387 S.W.3d at 885 (citing Miranda,

384 U.S. 436, 86 S.Ct. 1602; Joseph, 309 S.W.3d at 24.) Without a valid waiver, a

defendant’s statement is generally inadmissible. Joseph, 309 S.W.3d at 24. While

it is true that a waiver cannot be presumed simply from an accused’s silence or the

fact that a confession was made after warnings were provided, “the general rule is

that neither a written nor an oral express waiver is required.” Hernandez, 387

S.W.3d at 885 (citing Watson v State, 762 S.W.2d 591, 601 (Tex.Crim.App.1988)).

A waiver need not assume a particular form and, in some case, a “waiver can

clearly be inferred from the actions and words of the person integrated.” Watson,

762 S.W.2d at 601 (citing North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct.

1755, 60 L.Ed.2d 286 (1979)).

      “The question is not whether [a defendant] ‘explicitly’ waived his Miranda

rights, but whether he did so knowingly, intelligently, and voluntarily.” Lampkin v

State, 470 S.W.3d at 893 (quoting Joseph, 309 S.W.3d at 25). “To answer this

question, we must determine (1) whether “ ‘the relinquishment of the right … was

the product of a free and deliberate choice rather than intimidation, coercion or

deception’ ” and (2) whether the waiver was “ ‘made with full awareness of both

the nature of the right being abandoned and the consequences of the decision to

                                         12
abandon it.’ ” Lampkin, 470 S.W.3d at 893 (citing Joseph, 309 S.W.3d at 25). “

‘Only if the “totality of the circumstances surrounding the interrogation” reveals

both an uncoerced choice and the requisite level of comprehension may a court

properly conclude that the Miranda rights have been waived.’ ” Lampkin, 470

S.W.3d at 893 (citing Joseph, 309 S.W.3d at 25).

      In determining whether there was a valid waiver … we must look to the

totality of the circumstances, “including the background, experience, and conduct

of the accused.” Hernandez, 387 S.W.3d at 885 (citing North Carolina v. Butler,

441 U.S. 369, 374-75, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Joseph, 309 S.W.3d

at 25). A waiver can be expressly made or implied by the accused’s conduct.

Joseph, 309 S.W.3d at 24. An implied waiver of one’s rights is established upon a

showing that the accused: (1) was given the proper warnings; (2) understood the

warnings and their consequences; and (3) made an uncoerced statement.

Hernandez, 387 S.W.3d at 885 (citing Berghuis v. Thompkins, -U.S.-, 130 S.Ct.

2250, 2261, 176 L.Ed.2d 1098 (2010)) “As a general proposition, the law can

presume that an individual who, with a full understanding of his or her rights, acts

in a matter inconsistent with their exercise has made a deliberate choice to

relinquish the protection those rights afford.” Berghuis, 130 S.Ct. at 2262. Simply

making a statement is often the kind of conduct viewed as indicative of one’s

                                         13
intention to waive her rights. See Berghuis, 130 S.Ct. at 2262; Joseph, 309 S.W.3d

at 25 n.7.

      Much like the defendant in the Joseph case, an examination of state’s exhibit

16 and 17 reveals at no time during Appellant’s custodial interview did Appellant

request an attorney and at no time did Appellant ask that the interview be stopped.

Furthermore, the record shows no evidence of intimidation or coercion of

Appellant, nor did law enforcement ever promise Appellant anything in exchange

for providing a statement. (RR Vol. 2, p. 170). In fact, during the entire one hour

and twenty-six minute interview, the state would characterize the interview as

cordial and non-intimidating, with Appellant freely conversing with law

enforcement about the narcotics found in the Appellant’s home. Appellant stated

he understood his rights and agreed to speak with law enforcement. (RR Vol. 2, p.

170). After being read each of the required warnings under 38.22 § 2, the

Appellant either nodded his head in the affirmative that he understood or stated an

affirmative verbal response that he understood his rights, and at the conclusion of

the reading of his rights Appellant also nodded in the affirmative he understood all

of the rights that had been read to him. (state’s exhibit 16 at 1:15 – 1:43).

Appellant also indicated to law enforcement that he was a college educated man.

(state’s exhibit 16 at 6:48 - 6:52). The court noted in its findings of fact and

                                           14
conclusions of law that based on the Appellant’s level of education, that the

Appellant voluntarily waived his Miranda and Article 38.22 rights. (RR Vol. 3,

p.9). It is the state’s contention that it is clear from a review of state’s exhibit 16

and 17 that Appellant’s statement was free of any type of coercion from law

enforcement.

     The totality of the circumstances surrounding Appellant’s interrogation shows

that Appellant’s wavier was made with full awareness of both the nature of the

rights being abandoned and the consequences of the decision to abandon them. The

warnings read to Appellant fully complied with the requirements of both Miranda

and Article 38.22 as well as informed the Appellant of the consequences of

waiving those rights.

     Looking at the totality of the circumstances, Appellant’s conduct during the

custodial interrogation clearly supported the trial court’s conclusion that Appellant

had the requite level of comprehension to waive his Miranda and Article 38.22

rights, and did in fact knowingly, intelligently, and voluntarily waive those rights.

Therefore the trial court did not abuse its discretion in ruling that the Appellant

waived his rights under Miranda and Article 38.22.




                                            15
          SUMMARY OF THE ARGUMENT REPLY ISSUE TWO

      The trial court did not abuse its discretion in denying Appellant’s

motion for continuance. Appellant’s motion for continuance did not comply

with requirements of Article 29.06 and Appellant did not exercise due

diligence in securing the attendance of a witness for trial. Furthermore,

pursuant to Article 39.14 of the Texas Code of Criminal Procedure, the state

was under no duty to provide Appellant with a witness list, nor update that

information. There was no violation for failure to provide exculpatory

information under Brady v. Maryland, nor was that alleged error preserved

for appellate review.



          ARGUMENTS AND AUTHORITIES REPLY ISSUE TWO

     Appellant’s main contention on appeal is that the state failed to provide an

address for a potential witness, and a violation of the state’s duty to provide

exculpatory and mitigating evidence. However Appellant’s written motion for

continuance and oral objections made during Appellant’s motion argue that a

failure to provide an address for a potential witness and possible exculpatory and

mitigating evidence are both violations of Article 39.14 of the Texas Code of

Criminal Procedure. (CR Vol. 1, p. 108). The state disagrees with Appellant’s

                                          16
assertion, and would further argue that the issue now raised on appeal (a Brady v.

Maryland violation) does not comport with the arguments made during Appellant’s

motion for continuance and is therefore not properly preserved for appellate

review, and even if it was properly preserved, is meritless. In addition, Appellant’s

motion for continuance does not comply with Article 29.06 of the Texas Code of

Criminal Procedure, nor did Appellant use due diligence in securing the attendance

of his witness for court, and the trial court did not abuse its discretion in denying it.

      Preservation of error is governed by Rule 33.1 of the Texas Rules of

Appellate Procedure, which provides that, to preserve error, a complaint must be

“made to the trial court by a timely request, objection, or motion that ... state[s] the

grounds for the ruling that the complaining party sought from the trial court with

sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context.” Tex.R.App. P. 33.1(a)(1)(A) .

The record must also show that the trial court “ruled on the request, objection, or

motion, either expressly or implicitly” or “refused to rule on the request, objection,

or motion, and the complaining party objected to the refusal.” Tex.R.App. P.

33.1(a)(2). Regarding its specificity, the objection must simply be clear enough to

provide the judge and the opposing party an opportunity to address and, if

necessary, correct the purported error. Ford v. State, 305 S.W.3d 530, 533

                                           17
(Tex.Crim.App. 2009). No “magic words” are required. Ford, 305 S.W.3d at

533. An objection is considered in the context in which the complaint was made

and the parties' shared understanding of the complaint at that time. Lankston v.

State, 827 S.W.2d 907, 911 (Tex.Crim.App. 1992). A defendant's appellate

contention must comport with the specific objection made at trial. Wilson v.

State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (see also Lampkin v. State, 470

S.W.3d at 895 (Tex.App.-Texarkana 2015)). An objection grounded on one legal

basis may not be used to support a different legal theory on appeal. Rezac v. State,

782 S.W.2d 869, 870 (Tex.Crim.App.1990). The reviewing court will not consider

errors, even of constitutional magnitude, not called to the trial court’s attention.

Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995).

     Appellant’s motion for continuance, among other things, clearly states he is

seeking a continuance based on an alleged violation of Article 39.14 of the Texas

Code of Criminal Procedure for failure of the state to provide an address for Brody

West (CR Vol. 1, p.108-110). Appellant’s trial counsel reiterated this basis for his

motion when he argued it to the trial court (RR Vol 2, p.17), and even argued the

specific text of Article 39.14(h) to the trial court (RR Vol 2, p. 25).

      The offense date of Appellant’s charge is September 23rd, 2011. Subsection

(h) was added to Article 39.14 in 2013 and historical notes specifically state the

                                           18
changes to Article 39.14 apply “to the prosecution of an offense committed on or

after the effective date [January 1, 2014] of this Act”.

TEX.CODE.CRIM.PROC.ANN.art.39.14 (h) historical note [Act of May 14, 2013,

83rd Leg., R.S., ch. 49, Sec. 3, 2013 Tex. Sess. Law. Serv. 106,108]. See Garza v.

State, 453 S.W.3d 548, 554 (Tex.App.-San Antonio 2014, pet. ref’d). Thus, Article

39.14(h) is inapplicable. Appellant is limited to the arguments and objections

actually made before the trial court. Since Appellant argued a statue that is

inapplicable to his case, he cannot make a different argument on appeal under an

alleged violation of the state’s duty under Brady v. Maryland.

       Furthermore, even if the current version of Article 39.14 applied to this

case, a plain reading of Article 39.14 does not require or compel the state to

compile a witness list in order to provide such a list to the defense. Article 39.14(b)

only requires witnesses be designating that intend to offer testimony under Rules

702, 703, and 705 of the Texas Rules of Evidence, commonly known as “expert”

witnesses. See Osbourn v. State, 59 S.W.3d 809, 815 (Tex.App.-Austin 2001, no

pet.). Appellant’s assertion that a violation of Article 39.14 occurred because of a

failure to provide an address for a potential lay witness on a witness list is simply

not grounded in Texas law nor does Appellant cite any authority to support that

position.

                                          19
     An examination of the record shows the following statements:

       THE COURT: Well, if the State wasn’t going to call him, Mr. Cole, why

are they obligated to give you the address of someone they’re not going to call?

     MR COLE: Because [Brody West] is exculpatory under Brady/United States,

I have a right to call him. I believe he’s got some history that would be relevant to

this case for many reasons (RR Vol. 2, p. 17-18).

      Should this Court feel like that statement adequately preserved his point of

error, the state’s position is that no Brady violation occurred. Appellant attempts to

argue the same point of error, i.e. violation of the state’s duty to provide

exculpatory or mitigating evidence, in both points two and three of his brief. This

creates difficulty for the author responding to multifarious points of error. For the

sake of briefing clarity, the state will limit argument of Appellant’s Brady claim in

the state’s response to point of error number three.

     A trial court’s ruling on a motion for continuance is reviewed under an abuse

of discretion standard. Clay v. State, 390 S.W.3d 1, 15 (Tex.App-Texarkana 2012,

pet. ref’d) (citing Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007)). To

establish an abuse of discretion, Appellant must show that the trial court erred by

denying his motion and that he was harmed by the denial of a continuance.

Gonzales v. State, 304 S.W.3d 838, 843 (Tex.Crim.App. 2010). It is no longer the

                                          20
law of the State of Texas that a defendant file a motion for new trial in order to

preserve error on a trial court’s denial of a motion for continuance for want of a

witness. See Harrison v. State, 187 S.W.3d 429 (Tex.Crim.App. 2005).

     The state concedes that Appellant’s motion for continuance was written and,

while not notarized, was “sworn” to by a deputy district clerk pursuant to Texas

Government Code Section 602.002(2), complying with Article 29.03 of the Texas

Code of Criminal Procedure (CR Vol 1. p.108-110). However, Appellant’s motion

does not comply with Article 29.06 of the Texas Code of Criminal Procedure.

      Motions for continuance for want of a witness are governed by Article 29.06

of the Texas Code of Criminal Procedure. It lists six factors that shall be necessary

for the motion to be proper:

   1. The name of the witness and his residence, if known, or that his residence is not known.

   2. The diligence which has been used to procure his attendance, and it shall not be

      considered sufficient diligence to have caused to be issued, or to have applied for, a

      subpoena, in cases where the law authorized attachment to issue

   3. The facts which are expected to be proved by the witness, and it must appear to the court

      that they are material.

   4. That the witness is not absent by the procurement or consent of the defendant.

   5. That the motion is not made for delay.




                                               21
   6. That there is no reasonable expectations that attendance of the witness can be secured

      during the present term of court by a postponement of the trial to some future day of said

      term.

      Appellant’s written motion for continuance does not state the residence of

Brody West or that his residence is unknown, nor does it state the diligence used to

procure his attendance, nor does it state the facts which are expected to be proved

by the witness, nor does it state the witnesses is not absent by the procurement or

consent of the defense, nor does it state that there is no reasonable expectation that

the witness can be secured during the present term of the court by postponement to

some future day.

     Where a defendant fails to demonstrate the diligence used in seeking to locate

and interview a missing witness, it is not error for the trial court to deny the motion

for continuance. Tucker v. State, 109 S.W.3d 517, 520 (Tex.App.-Tyler 1999 pet.

ref’d) (citing Johnson v. State, 467 S.W.2d 247, 250 (Tex.Crim.App.1971)).

Diligence, in the motion for continuance context, is the exercise of timely and

persistent efforts to secure the attendance of witnesses, using the means and

agencies provided by law. Tucker, 109 S.W.3d at 520 (citing Edwards v. State, 185

S.W.2d 111, 112 (Tex.1945)). If defense counsel waits until only a few days before

trial to seek to secure a witness for trial, the court may conclude that due diligence

has not been used. Tucker, 109 S.W.3d at 520 (citing Norton v. State, 564 S.W.2d
                                              22
714, 716-17 (Tex.Crim.App.1978)). Tucker has been cited by this Appellate Court

as authority in its unpublished opinion in Maxwell v. State, 06-12-00194-CR

(Texarkana, unpublished opinion Feb. 12, 2014). Because a missing witness is a

risk inherent in almost every case, the party seeking to present the witness must

exercise reasonable diligence to protect against the possibility that a witness will

not appear. Rodriguez v. State, 21 S.W.3d 562, 566 (Tex.App.-Houston [14th

Dist.] 2000, no pet.). Failure to take the necessary steps to secure the attendance of

a key witness demonstrates a lack of reasonable diligence. Rodriguez, 21 S.W.3d at

566.

       It is abundantly clear from the record that Appellant’s trial counsel did not

exercise due diligence in securing the attendance of Brody West for trial.

Appellant’s counsel stated clearly to the trial court that he issued subpoenas the

day before trial (RR. Vol 2, p. 15), and that he had prior subpoenas out on Friday

(RR Vol 2, p.16), five days before trial. The trial court expressed its displeasure

with Appellant’s counsel complete lack of due diligence on a case that had been

pending for over two years. (RR. Vol 2, p. 21). A review of the record also does

not show that Appellant ever stated what facts were to be proven by Brody West,

nor explain to the trial court how those facts were material. (RR. Vol. 2, p. 14-28).




                                           23
Subsequently, the trial court denied Appellant’s motion for continuance. (RR Vol.

2, p. 28).

     The Texas Court of Criminal Appeals has ruled that when requested by a

criminal defendant, and when ordered to do so by the trial court, the state must

give notice of its witnesses before trial. Martinez v. State, 867 S.W.2d 30, 39

(Tex.Crim.App. 1993). Appellant’s first trial counsel filed a motion for disclosure

of the state's witnesses (CR Vol. I, p. 30-31), however the record does not reflect

nor contain any order from the trial court ordering the state to disclose its witnesses

to Appellant. What is interesting to note is that the state never called, nor intended

to call, Brody West as a witness in this case. (RR Vol. 2, p. 16). It is apparent from

the record that Appellant’s trial counsel was aware of Brody West’s involvement

with this case several months before trial during the suppression hearing on June 2,

2014 (RR Motion to Suppress, p.65), Appellant’s counsel also stated to the trial

court that he was aware that Brody West was a potential witness in this case from

the time he received the state’s first witness list while arguing his motion for

continuance. (RR. Vol. 2, p. 20). The state’s first witness list was filed May 12 th,

2014 and did not list Brody West as a witness. (CR Vol I. p. 65). The only reason

Brody West was added to the state’s subsequent witness list was because of a

request from Appellant’s counsel (RR Vol. 2, p. 16).

                                          24
        Appellant’s motion for continuance clearly does not meet the requirements of

Article 29.06. Further, Appellant did not present to the trial court what facts were

expected to be proven by Brody West and it clearly did not appear to the trial court

that they were material. Nor did Appellant (after being aware for almost a year that

Brody West was a potential witness) exercise proper due diligence to secure the

attendance of Brody West for trial. Failure to set out all the requirements of Article

29.06 in a motion for continuance due to lack of a witness renders the motion

inadequate. Latham v. State, 20. S.W.3d 63, 67 (Tex.App.-Texarkana 2000) (citing

Gonzales v. State, 505 S.W.2d 819 (Tex.Crim.App.1974); see also Reese v. State,

905 S.W.2d 631, 636 (Tex.App.-Texarkana 1995, pet. ref’d, untimely filed).

Therefore, the trial court did not abuse its discretion in denying the motion.

Appellant must ultimately be held responsible for his failure to exercise due

diligence in securing the attendance of a witness he claimed was critical to his

case.




                                          25
         SUMMARY OF THE ARGUMENT REPLY ISSUE THREE

      The state did not commit a Brady violation. This issue was not properly

preserved for appellate review and assuming arguendo it was, the state: 1) did not

suppress or fail to disclose any exculpatory or mitigating evidence, 2) the evidence

was not favorable to the Appellant, and 3) the evidence was not material to the

Appellant. Also, in Appellant’s brief he writes issue number three deals with the

failure to disclose the identity of the confidential informant. (Appellant’s brief p.

2). However, issue number three is actually briefed as a Brady violation.

(Appellant’s brief p. 15). This is confusing to the author, so the state will limit

argument to Appellant’s alleged Brady violation.



        ARGUMENTS AND AUTHORITIES REPLY ISSUE THREE

     First and foremost, the state feels it is important to note that Appellant in this

case attempts to improperly supplement the appellate record in this matter.

(Appellant’s Brief Appendix p. 1-3). The appellate record is comprised of “the

clerk's record and, if necessary to the appeal, the reporter's record.” TEX.R.APP.P

34.1. An appellate court must determine a case on the record as filed and cannot

consider documents attached as exhibits or appendices to briefs or motions. James

v. State, 997 S.W.2d 898, 901 n. 5 (Tex.App.—Beaumont 1999, no pet.). “It is

                                           26
elementary that we are precluded from considering materials outside the appellate

record”. Yarbrough v. State, 57 S.W.3d 611, 616 (Tex.App.-Texarkana 2001, no

pet.) (citing Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840

(Tex.1979); In re Marriage of Murray, 15 S.W.3d 202, 204 n. 3 (Tex.App.—

Texarkana 2000, no pet.)). Appellant’s “appendix” is, simply put, an attempt to

improperly introduce evidence before this Appellate Court that is not part of the

appellate record in this case, and such evidence should not be considered.

      Appellant’s brief claims that failing to provide the address of Brody West,

the nature of the federal investigation, and the relationship that Brody West may

have had with the confidential informant were all violations of the state’s duty to

provide all exculpatory and mitigating evidence. However, as cited as authority

above, Appellant’s points of error on appeal do not match the arguments and

objections he made to the trial court, and as such are not preserved for appellate

review. A review of the record reveals that after Appellant’s motion for

continuance was denied, at no time did Appellant offer any additional objections

under Brady v. Maryland or its progeny during any witness testimony or at his

motion for new trial. It should be noted, however, that after Investigator Bounds

testified, Appellant re-urged his motion for continuance (RR Vol. 2, p. 178). Long-

standing case law indicates when previously withheld evidence is disclosed at trial,

                                         27
the defendant has an opportunity to request a continuance. Taylor v. State, 93

S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet, ref’d) (citing Williams v. State,

995 s.W.2d 754, at 762 (Tex.App.-San Antonio 1999, no pet.)) However,

Appellant merely re-urged his previously denied motion for continuance and

provided no additional argument as the reason for his continuance under Brady v.

Maryland. Appellant’s motion for continuance was based on failure to provide an

address for a witness under Article 39.14. (CR Vol 1, p. 108-110).

     Assuming arguendo that Appellant’s Brady claim is preserved, the state fully

complied with its duty under Brady v. Maryland. The state is required to provide

potentially exculpatory information to the defense. Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Thomas v. State, 841 S.W.2d 399

(Tex.Crim.App.1992). The Due Process Clause of the Fourteenth Amendment to

the United States Constitution is violated when a prosecutor fails to disclose

evidence favorable to the accused that creates a probability sufficient to undermine

confidence in the outcome of the proceeding. Thomas v. State, 841 S.W.2d at 404.

In order to establish a due process violation under Brady, a defendant must show:

1) the state failed to disclose evidence, regardless of the prosecutions good or bad

faith; 2) the withheld evidence was favorable to the defense; and 3) the evidence is

material, that is, there is a reasonable probability that had the evidence been

                                          28
disclosed, the outcome of the trial would have been different. Pena v State, 353

S.W.3d 797, 809 (Tex.Crim.App. 2011). Favorable evidence is that which, if

disclosed and used effectively, “may make the difference between conviction and

acquittal.” Pena v. State, 353 S.W.3d at 811 (citing United States v. Bagley, 473

U.S 667, 105 S.Ct. 3375, 87 L.Ed.2d 481, 676 (1985). Favorable evidence includes

both exculpatory and impeachment evidence. Thomas v State, 841 S.W.2d at 404.

A Brady violation may also occur when a prosecutor fails to disclose evidence that

may impeach the credibility of a state's witness where the witness' credibility is

material to the determination of an accused's guilt. Dalbosco v. State, 978 S.W.2d

236, 239 (Tex.App.-Texarkana 1998, pet. ref'd). Evidence whose value is limited

to impeachment must also be provided to the defendant if the failure to do so

would undermine confidence in the trial's outcome. Ex parte Mitchell, 977 S.W.2d

575, 578 (Tex.Crim.App.1997). Brady material “includes disclosure of any

favorable information in the possession of police agencies or other members of the

‘prosecutorial team’ ” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d

490 (1995). Under Brady, nondisclosure of favorable evidence violates Due

Process only if it is “material” to guilt or punishment. “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

                                          29
constitutional sense.” Pena v. State, 353 S.W.2d at 812 (citing United States v.

Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed2d 342 (1976)). Hence, the defendant

must show 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.” Pena v. State, 353 S.W.3d at 812. “The question is not whether the

defendant would more likely than not received a different verdict with the

evidence, but whether in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a

different result is accordingly shown when the Government’s evidentiary

suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles v.

Whitley, 514 U.S. 419, 434. This materiality standard is not a sufficiency of the

evidence test. Kyles v. Whitley, 514 U.S. 419 at 434-435. When evaluating whether

the materiality standard is satisfied, the strength of the exculpatory evidence is

balanced against the evidence supporting conviction. Hampton v. State, 86 S.W.3d

603, 613 (Tex.Crim.App. 2002). The suppressed evidence is considered

collectively, rather than item by item. Kyles v. Whitley, 514 U.S.419 at 436. “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.” Pena v State, 353 S.W.3d at 810 (quoting Hafdahl v. State,

                                          30
805 S.W.2d 396, 399 n. 3 (Tex.Crim.App. 1990). The state does not have such a

duty if the defendant was actually aware of the exculpatory evidence or could have

accessed it from other sources. Pena v. State, 353 S.W.3d at 810 (see also Harm v.

State, 183 S.W.3d 403, 407 (Tex.Crim.App. 2006) There is no Brady violation if it

is not shown that the defendant was denied access to the allegedly favorable

material. Taylor v. State, 93 S.W.3d at 499 (citing Staten v. State, 919 S.W.2d 493,

498 (Tex.App.-Fort Worth 1996, pet. ref’d). Further, the prosecutor is not required

to furnish the defendant with exculpatory and mitigating evidence which is equally

and fully accessible to the defense. Taylor v. State, 93 S.W.3d at 499 (citing Flores

v. State, 940 S.W.2d 189, 191 (Tex.App.San Antonio 1996, no pet.). If the defense

has the opportunity to cross-examine concerning the allegedly exculpatory material

and there is no showing the defense would have pursued a different trial strategy if

he or she had known this information sooner, no Brady violation is

shown. Williams v. State, 995 S.W.2d 754, 761–62 (Tex.App.-San Antonio 1999,

no pet.)

     Appellant’s point of error is that the state violated its obligations under Brady

v. Maryland by failing to disclose the existence of a prosecution of Brody West by

the federal government with an alleged federal criminal charge. An examination of

the record reveals that Brody West was no longer working with the Marshall Police

                                          31
Department (RR Vol. 2, p. 16). The District Attorney reported to the trial court that

the District Attorney’s office was not involved in the prosecution of Brody West,

that Brody West was facing prosecution by federal authorities, that he did not

know what charges Brody West was facing other than what had been reported in

the newspaper, and had no information about Brody West’s case or what the

ultimate disposition would be (RR Vol. 2, p. 27). Other counsel for the state

indicated to the trial court that Brody West was not going to be called as a witness

by the prosecution. (RR. Vol. 2, p. 25). Three months later, during Appellant’s

motion for new trial, Brody West was again not subpoenaed to testify by Appellant

and a review of the record shows no evidence of the nature of the federal charge

against Brody West or how these allegations were exculpatory to Appellant. The

evidence appears to be impeachment evidence only. Furthermore, there is simply

no evidence in the appellate record that the federal investigation surrounding

Brody West was related to the same confidential informant in this case. Only one

reference is found in the testimony of Lynn Ames involving an informant but it is

clear from his testimony as a whole he did not know any specifics about the federal

investigation or what the charges were. (RR Vol. 2, p. 93-96, 104-105),

additionally there was no Brady objection lodged after Lynn Ames testified.




                                         32
     First and foremost, the evidence that Brody West was being investigated by

federal authorities was not suppressed by the state. The Harrison County District

Attorney’s Office and the Federal government are not part of the same

“prosecutorial team”. Appellant cites to no authority that the state must search the

files of a federal government agency involving a matter unrelated to Appellant’s

case for evidence that might have impeachment value to the defense. See State v.

Moore, 240 S.W.3d 324 (Tex.App.- Austin 2007, pet. ref’d) and Shanks v. State,

13 S.W.3d 83, 86 (Tex.App.-Texarkana 2000, no pet.). Moore and Shanks are

important because they involve cases where a Brady violation was alleged due to

failure to turn over impeachment evidence against a state’s witness. In Moore, the

Austin Court of Appeals ruled that the Texas Attorney General and the Travis

County District Attorney were not part of the same “prosecutorial team”, so that

evidence known to the Attorney General is not considered evidence known to the

“state”. In Shanks, this Court ruled that no Brady violation occurred when the state

failed to disclose impeachment evidence in the form personal employment history

of a witness who work for the Texas Department of Criminal Justice for the same

reason, that the two were not the same “prosecutorial team”. Also in Shanks, this

Court ruled the witness was a peripheral player who did not testify about the

incident germane to the prosecution. In the case before this Court, Brody West

                                         33
never testified and was not going to be called as a witness by the state. (RR Vol. 2,

p. 25) The evidence that Brody West was being prosecuted by federal authorities

was a matter of public knowledge and been reported in the newspaper (RR. Vol. 2,

p.27). The state has no duty to provide to the Appellant with exculpatory and

mitigating evidence which is equally and fully accessible to the defense. Taylor v.

State, 93 S.W.3d at 499. District Attorney’s Office Investigator Joe Bounds

testified that a federal investigation was known to the District Attorney’s Office

but did not know with certainty any details regarding that investigation. (RR Vol.

2, p. 175-176). No Brady objection was articulated after Investigator Bounds

testified and was a summation of the information the District Attorney reported to

the trial court during the motion for continuance. It had long been known that

Brody West was no longer working for the Marshall Police Department (RR Vol.

2, p. 16) information not refuted by Appellant. Lynn Ames testified he was aware

that Brody West under a federal investigation that did not involve anyone in the

Marshall Police Department, that it may have involved informants but that he was

unaware as to what the allegation was (RR Vol. 2, p.93). After Lynn Amen

testified there was no Brady objection and the only continuance requested was to

procure the testimony of Scott Beck. (RR Vol. 1, p.101). Any alleged Brady




                                         34
violation after Lynn Ames testified was waived when Appellant did not object and

only requested a continuance to secure the attendance of another witness.

      The state disclosed to the Appellant exactly what it knew, that there was a

potential federal prosecution of a witness who was not going to be called by the

state and who the state was not relying on to convict the Appellant. (RR Vol. 2,

p.25, 27). Other than that, no details about the investigation were known to the

state nor could be provided to Appellant because the state and the Federal

government were not part of the same “prosecutorial team”. Brody West’s

creditability was also not material to the disposition of Appellant’s guilt. The

Appellant cross-examined each one of the state’s witnesses with the alleged

exculpatory material, and has made no showing either at the motion for new trial or

now on appeal how he would have pursued a different trial strategy had his motion

for continuance been granted.

     Despite Appellant’s statements to the trial court in his motion for continuance

that he had basically no knowledge about any exculpatory or mitigating evidence

pertaining to Brody West (RR Vol. 2, p.25-26) (RR Vol. 2, p. 28), it is interesting

to note the reason that Appellant sought a continuance in the first place was to

subpoena Brody West to testify because Appellant stated he was: “exculpatory”

and that “I believe he’s got some history that would be relevant to this case for

                                          35
many reasons” (RR Vol. 2, p.17-18). It is clear from that statement alone at the

beginning of the motion for continuance that Appellant’s counsel was aware of the

potentially exculpatory or mitigating evidence. How can the Appellant claim the

state suppressed evidence and he is unaware of that evidence if he seeks a

continuance and informs the trial court he is attempting to procure the very

exculpatory evidence he claims he has no knowledge of? This argument is circular

and shows the evidence was known to Appellant and was not suppressed by the

state.

     Assuming, without conceding, that the Court believes the evidence was

suppressed, Appellant has not shown the evidence was “favorable” to him. The

state’s position is that there is simply not enough information in the appellate

record to make a determination that the information was favorable. Whether

unrevealed evidence would have been “favorable” to the accused must be

determined by ascertaining whether the evidence “if disclosed and used effectively

… may make the difference between conviction and acquittal.” Chandler v. State,

278 S.W.3d 70, 74 (Tex.App.-Texarkana 2009, no pet) (quoting Thomas v State,

841 S.W.2d 399, 404 (Tex.Crim.App. 1992)). The only evidence on the record is

that there was an allegation against Brody West by the Federal government, and

that he was no longer with the Marshall Police Department. (RR. Vol. 2, p. 16)

                                          36
(RR Vol 2, p. 27). The state had no knowledge of, nor duty to discover, nor did

Appellant offer any evidence in his motion for continuance or motion for new trial:

What charge Brody West was facing, how it was relevant as impeachment

evidence under these circumstances, how this information was favorable to

appellant, how this information related to Appellant’s current charge, or even how

this information would be admissible in trial. Based on the record as a whole, the

state argues Appellant has not shown how this information was “favorable” to him.

     Again assuming, without conceding, that the evidence was favorable to

appellant, for the same reasons Appellant has not shown, nor has he briefed and

shown to this Court, how the evidence was “material”. “Material evidence” is

evidence that has a reasonable probability, had the evidence been disclosed to the

defense, the outcome of the proceeding would have been different. Chandler v.

State, 278 S.W.3d at 74 (quoting Ex parte Kimes, 872 S.W.2d 700, 702

(Tex.Crim.App. 1993). When evaluating whether the materiality standard is

satisfied, the strength of the exculpatory evidence is balanced against the evidence

supporting conviction. Pena v. State, 353 S.W.3d at 812 (citing Hampton v. State,

86 S.W.3d 603, 613 (Tex.Crim.App. 2002). To make this determination, appellate

courts must examine the alleged error in the context of the entire record. Taylor v.

State, 93 S.W.3d at 501 (citing Thomas v. State, 841 S.W.2d at 404). “We are

                                         37
required to examine the error in context of the overall strength of the State’s case.

See Thomas v. State, 841 S.W.2d at 405. “The Thomas court referred to the

analysis used by the United States Supreme Court in Agurs to supply the form of

that analysis.” Taylor v. State, 93 S.W.3d at 501. “The Agurs opinion states:

      If … one of only two eyewitnesses to a crime had told the prosecutor that the

      defendant was definitely not its perpetrator and if this statement was not

      disclosed to the defense, no court would hesitate to reverse a conviction

      resting on the testimony of the other eye witness. But if there were fifty

      eyewitnesses, forty-nine of who saw the defendant, and the prosecutor

      neglected to reveal the other, who was without his badly needed glasses on

      the misty evening of the crime, had said that the criminal looked something

      like the defendant but he could not be sure as he had only had a brief

      glimpse, the result might well be different.” Agurs, 427 U.S. at 113, 96 S.Ct.

      2392.

Therefore, a verdict that is only weakly supported by the record is more likely to

be affected by the prosecutorial error than a verdict which is strongly supported.

Taylor v. State, 93 S.W.3d at 501 (citing Strickland v. Washington, 466 U.S.668,

696, 104 S.Ct. 2052, 90 L.Ed.2d 674 (1984). Brody West’s credibility was not

material to the disposition of Appellant’s guilt.

                                          38
    The evidence in the state’s case against Appellant was enormous. A

confidential informant supplied information to the police that Appellant was seen

in possession of large quantities of narcotics which lead to the issuance of a search

warrant for Appellant’s residence (RR Vol. 5, State’s exhibit 1). Lynn Ames

testified that in his opinion Appellant was a drug dealer and possessed those drugs

with intent to distribute. (RR Vol. 2, p.87). Most importantly, Appellant himself

confessed and admitted to possession of the cocaine and claimed it belonged to

him and not anyone else and further explained the reasons why he began selling

the cocaine that was found in his home. (state’s exhibits 16 and 17). The verdict in

this case is strongly supported by the evidence, and Appellant has failed to show

how the evidence was “material”. An examination of the record as whole does not

show that had the evidence been disclosed (which the state does not concede it was

not disclosed) the outcome of the proceeding would have been any different; a

determination that was also made by the trial court when pronouncing Appellant’s

sentence. (RR Vol. 3, p. 9-11).

     Finally, appellant asks this court to reverse the judgment of the trial court and

enter a judgment of acquittal. That is an improper remedy for Appellant’s alleged

Brady violation. The Court of Criminal Appeals has ruled on several occasions that

the proper remedy for a Brady violation is a reversal of Appellant’s conviction and

                                          39
to remand to the trial court for further proceedings. Ex Parte Mitchell, 977 S.W.2d

575, 578 (Tex.Crim.App. 1997), See also Pena v. State, 353 S.W.3d at 814. While

not conceding any of Appellant’s points of error, the state out of an abundance of

caution felt necessary to address Appellant’s request for an improper remedy.




                                         40
                                    PRAYER

      The trial court having committed no reversible error, the state respectfully

prays this Court affirm the verdict and judgment of the court below.

                                                    Respectfully Submitted
                                                    Coke Solomon
                                                    Criminal District Attorney
                                                    Harrison County, Texas

                                              By:      /s/ Shawn Eric Connally
                                                    ________________________
                                              Shawn Eric Connally
                                              Assistant Criminal District Attorney
                                              Bar #24051899

                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Brief of the
Appellee has been sent to the attorney for Appellant, Robert Cole, on the 21st day
of December, 2015.


                                              /s/ Shawn Eric Connally
                                              ____________________________
                                              Shawn Eric Connally

                      CERTIFICATE OF COMPLIANCE

     I hereby certify compliance with T.R.A.P 9.4(i)(3), and that the number of
words in this document is 10224.
                                          /s/ Shawn Eric Connally
                                          ____________________________
                                          Shawn Eric Connally

                                         41
