Appeal Dismissed and Memorandum Opinion filed May 26, 2016.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-15-00344-CR
                             NO. 14-15-00345-CR

                    NAYAJAH NIYA DAVIS, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                  On Appeal from the 262nd District Court
                            Harris County, Texas
                  Trial Court Cause No. 1412474 & 1412475

                MEMORANDUM                     OPINION


      Appellant, Nayajah Davis, was convicted by a jury of two counts of assault
on a public servant. See Tex. Penal Code § 22.01(b). After the jury returned the
verdict, appellant entered into a plea agreement with the State—waiving her right
to appeal in exchange for a known punishment of concurrent sentences of five
years’ confinement, which was suspended and appellant was placed on five years’
community supervision. On appeal, she asserts the State withheld Brady material
and challenges the validity of the waiver.1

                                 FACTUAL BACKGROUND

       Appellant was involved in an altercation with Deputy Torres on December
24, 2013, at Wal-Mart where Torres had been working security. Torres sustained
injuries to her head and face, another officer sustained minor injuries, appellant
was pepper-sprayed, and Torres drew her weapon. Appellant was charged with two
counts of assault on a public servant.

                               PROCEDURAL BACKGROUND

       During pre-trial proceedings, appellant served the State with a subpoena
duces tecum on June 12, 2014, requesting among other things the personnel file of
Torres, training records and evaluations, and any grievances or complaints filed
against Torres during her employment that the State had in its possession. The
subpoena was returnable “Instanter” or within ten days. On June 26, 2014, the
State filed a motion to quash appellant’s subpoena, claiming privilege and seeking
a protective order. The trial court granted the motion to quash for the personnel
files, evaluations, and grievances of Torres. Appellant argued the requested
documents were Brady material and the motion to quash was untimely and thus
should not be considered. 2 The trial court decided to conduct an in camera review


       1
          Appellant has filed two separate appeals that we have consolidated for the purposes of
this opinion.
       2
           “Brady material” and “Brady evidence” are terms often used to describe material
evidence, favorable to an accused, regarding either guilt or punishment which the prosecution
must produce to the accused; suppression of this evidence violates the accused’s due process
rights irrespective of the good or bad faith of the prosecution. See Ex Parte Miles, 359 S.W.3d
647, 664 (Tex. Crim. App. 2012) (discussing Brady v. Maryland, 373 U.S. 83 (1963)).


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of the documents, numbering about 500 pages, to determine what, if anything, was
exculpatory.

      Later that summer, appellant’s attorney was contacted by William Demond,
an attorney in Houston representing two officers in a civil rights suit against
Torres. Demond claimed to have exculpatory material from discovery requests in
the civil rights suit that had not been provided to appellant. At a pre-trial hearing,
appellant informed the trial court of the additional exculpatory material she
believed existed and had not been provided and requested the trial court to
reconsider granting the State’s motion to quash; this request was denied. At a pre-
trial meeting on March 11, 2015, the trial court provided appellant with six pages
of exculpatory material from the in camera review of over 500 pages of
documents. At this meeting, the State informed appellant it had learned of other
possible Brady material; the State promised to conduct a review of the same
documents and provide any additional Brady material to appellant as soon as
possible. On March 14, 2015, the State provided eleven pages of Brady material to
appellant. Trial was set for March 16, 2015. Appellant requested a trial
continuance due to the new material she had just received; this request was denied.

      The jury found appellant guilty. Appellant had elected jury punishment, but
agreed to accept a plea bargain in exchange for a recommended sentence—five
years’ confinement, suspended for five years. In exchange, appellant waived her
right to appeal. However, days after signing the waiver, appellant was contacted by
Demond who claimed to have new exculpatory material that had not been provided
to appellant. After learning of this new material, appellant timely filed a motion for
new trial and a motion to set aside her waiver of right to appeal and requested an
evidentiary hearing regarding the newly-discovered evidence. Appellant attached
Demond’s affidavit as support for her claim that new exculpatory materials had not

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been disclosed. The trial court did not hold an evidentiary hearing and denied the
motion for new trial on April 20, 2015; appellant filed an appeal.

                                      ISSUES PRESENTED

      On appeal appellant raises five issues: (1) her waiver is invalid because the State
and the trial court erroneously withheld Brady material from her; (2) the trial court
erred in granting the State’s motion to quash appellant’s subpoena duces tecum; (3) the
trial court erred in withholding Brady evidence from appellant that was in the court’s
actual possession; (4) the State withheld Brady evidence that was in the actual and
constructive possession of its agents; and (5) the trial court erred in denying appellant’s
request for continuance after receiving Brady material on the eve of trial.3

      I. Waiver of Right to Appeal

      In her first issue appellant contends the waiver of her right to appeal is
invalid because she discovered the State’s failure to disclose new Brady evidence
after the waiver had been executed; as such, it could not have been made
knowingly and intelligently. In a criminal prosecution for any offense, a defendant
may “waive any rights secured [her] by law.” See Tex. Code Crim. Proc. § 1.14.
To be valid, a waiver of the right to appeal must be made voluntarily, knowingly,
and intelligently. Ex parte Delaney, 207 S.W.3d 794, 796–97 (Tex. Crim. App.
2006). A waiver will be voluntarily, knowingly, and intelligently made only under
circumstances in which, and to the extent that, the defendant is aware of what has
occurred in the trial proceedings and is in a position to know the nature of the
claims she could have brought on appeal but for her waiver. Ex parte Reedy, 282
S.W.3d 492, 498 (Tex. Crim. App. 2009). Appellant waived her right to appeal



      3
          Because we find appellant’s waiver to be valid, we do not reach issues two through five.

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after the jury found her guilty and in exchange for a known sentence.4 The trial
court accepted the agreement, rendered the recommended sentence, and
admonished appellant regarding the right to appeal. Appellant contends that after
the waiver was executed, she learned about new Brady material the State had not
disclosed. Appellant asserts that because of this new Brady violation, her waiver
was not made knowingly and intelligently, and therefore it is invalid.

      The Court of Criminal Appeals has stated that certain claims “may be
predicated upon facts that did not exist or were not within the [defendant’s]
knowledge or comprehension, despite due diligence and the assistance of counsel,
at the time she agreed to waive [her] rights, such as claims based on the
suppression of material, exculpatory evidence by the State.” Id. at 498 (discussing
waiver of right to pursue habeas corpus). When it comes to claims of this type, the
defendant’s waiver cannot have been made knowingly and intelligently and
therefore, cannot be enforceable. Id. A blanket waiver may not be enforceable as to
claims that the defendant could not reasonably have known about at the time of the
waiver, since by definition it is neither knowing nor intelligent. Delatorre v. State,
358 S.W.3d 280, 284 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (discussing
waiver of right to have jury assess punishment). But, if the defendant is “fully
aware of the likely consequences” when waiving the right to appeal, then a waiver
is valid. Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000). Therefore,
we must determine whether appellant could reasonably have known about the
alleged Brady violation at the time of her waiver of the right to appeal.




      4
          Appellant also waived her right to have the jury assess punishment.

                                                5
        II. Analysis

       To successfully invalidate her waiver—establishing it was executed neither
knowingly nor intelligently—appellant must show her underlying claim is
predicated upon facts that did not exist or were not within her knowledge or
comprehension, despite due diligence and the assistance of counsel, at the time the
waiver was executed. Cf. Ex parte Reedy, 282 S.W.3d at 498. The record before
this court, as well as appellant’s brief, make clear that appellant had knowledge of
potential Brady violations at the time she executed the waiver. However, appellant
argues that after executing the waiver, she learned of new Brady material,
numbering about 500 pages, which the State had not disclosed. In other words,
appellant claims the State committed a new Brady violation, of which she had no
knowledge when she executed the waiver.5 In support of her assertion that she was
not aware of the materials complained of in this new Brady violation at the time
she executed the waiver, appellant relies on the affidavit of Demond.

       While Demond’s affidavit describes information in the documents he
received from Harris County, numbering about 500 pages, it does not state what
documents actually contain the described information. Appellant did not provide
any other evidence to describe what documents the affidavit references. Appellant
has not established the 500 pages of documents referenced in Demond’s affidavit


       5
         To establish reversible error for a Brady violation, one must show: (1) the State failed to
disclose evidence, regardless of the prosecution’s good or bad faith; (2) the withheld evidence is
favorable to her; and (3) the evidence is material, that is, there is a reasonable probability that
had the evidence been disclosed, the outcome of the trial would have been different. Hampton v.
State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002); Ex parte Miles, 359 S.W.3d 647, 665 (Tex.
Crim. App. 2012). Additionally, appellant must show that the evidence would have been
admissible at trial. The State does not have a duty to disclose favorable, material evidence if it
would be inadmissible in court. Ex parte Miles, 359 S.W.3d at 665 (citing Ex parte Kimes, 872
S.W.2d 700, 703 (Tex. Crim. App. 1993)).


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are not the same 500 pages of documents the trial court reviewed in camera for
Brady materials that appellant had knowledge of prior to executing the waiver.
Therefore, appellant has not shown that this Brady violation claim is predicated
upon facts not within her knowledge or comprehension at the time she agreed to
waive her rights.

                                   CONCLUSION

      For this Court to reach the merits of this appeal, appellant was first required
to show the waiver of right to appeal was not made knowingly and intelligently
and thus was not enforceable. Because we conclude appellant did not show that the
new Brady violation claim is predicated upon facts not within her knowledge or
comprehension at the time she agreed to waive her rights, we overrule her first
issue and dismiss her appeal for lack of jurisdiction. As such, we do not reach the
merits of appellant’s claim or her remaining issues.


                                       /s/       Martha Hill Jamison
                                                 Justice



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




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