









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1012-03


JACKIE RUSSELL KEETER, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS

HAMILTON COUNTY



 Price, J., delivered the opinion of the Court, in which Keller, P.J., and
Womack, Keasler, Hervey, and Cochran, JJ., joined.  Meyers, J., did not
participate.  Keller, P.J., filed a concurring opinion, in which Cochran, J., joined. 
Holcomb, J., filed a dissenting opinion, in which Johnson, J., joined.

O P I N I O N



	The appellant appealed from the denial of his motion for new trial after a Hamilton
County jury convicted him of indecency with a child.  He claimed that the trial court erred
in denying his Brady (1) claim.  The Court of Appeals held that (1) the appellant either
preserved his Brady claim or did not need to and (2) the appellant had proved his Brady
claim. (2)  We granted review of this case to determine whether the Court of Appeals was
correct.  We will reverse because the appellant did not preserve his complaint for
appellate review.
I.  Facts and Procedural History

	The appellant was convicted of indecency with a child.  The complainant was his
wife's daughter from a prior marriage.  After being convicted and sentenced, he filed a
timely motion for new trial.  The text of the motion reads as follows:
		The verdict in this cause is contrary to the law and the evidence.
		Evidence establishing the defendant's innocence was withheld by a
material prosecution witness.  
		Defendant prays that the Court set aside the judgment of conviction
entered in this cause and order a new trial on the merits.
The claim seems to be one of actual innocence.  The appellant did not mention Brady.
	Along with the motion, the appellant submitted affidavits from the complainant
and from Rhonda Taylor King, the complainant's stepmother and the outcry witness at
trial.  In the complainant's affidavit, she recanted her trial testimony and explained that
she had made up the story so that she could live with her father for the summer.  In
Rhonda's affidavit, she said that, before the trial, she had told the prosecutor that she did
not believe the complainant's allegation against the appellant. She also said that the
prosecutor told her that he probably would not put Rhonda on the stand as a result.  But,
the record shows that Rhonda did testify during the trial.
	The trial court held a hearing on the motion for new trial.  During the hearing,
Rhonda testified.  She said that she had never believed the complainant's allegation that
the appellant had committed the offense.  She repeated her claim that, before the trial, she
had told the prosecutor that she did not think that the appellant had committed the
offense.  She explained that she did not believe the complainant because the complainant
repeatedly claimed and then denied that the offense happened.  
	The complainant's father, Travis King, also testified that he had told the
prosecutor that he did not believe the complainant's allegation.  The appellant's trial
attorney testified that the prosecutor never told her that Rhonda and Travis had said that
they did not believe the complainant. 
	The complainant's testimony was consistent with her affidavit recanting her trial
testimony.  The complainant's mother testified that she had never believed the
complainant.  A sheriff's office investigator and a Texas Department of Protective and
Regulatory Services investigator also testified about their meeting with the complainant
after she recanted her trial testimony.
	After the hearing on the motion, the State and the appellant submitted cases that
they believed were relevant to the trial court's decision on the motion.  Attached to the
appellant's letter to the trial court were copies of three opinions that dealt with witness
recantations and the effect of the State's knowledge of perjured testimony on a claim of
new evidence of innocence. (3)  The State submitted a letter directing the trial court's
attention to several cases, all of which dealt with the credibility of recanting or newly
discovered witnesses. (4)  None of the cases submitted by the appellant or the State dealt
with Brady claims.
	The trial court denied the motion without mentioning a Brady claim.  The trial
court issued a written order explaining its reasons for denying the motion.
	I have finally had a chance to review your submissions of case authority in
connection with this motion for new trial.  I don't find the testimony that
recants the trial testimony to be credible.  To do so would require me to
believe that this young child made up her testimony because her
(younger!!!) sister told her she would have to make something up about the
[appellant] so she could get to go and spend the summer with her dad, when
she did not previously know her dad was coming and when she had not seen
him in two years.
	On direct appeal, the appellant complained that the trial court erred in failing to
grant the motion for new trial because of (1) a Brady violation and (2) the complainant's
recantation.  The Court of Appeals reversed, holding that the trial court abused its
discretion in denying the motion for new trial because the complainant made a credible
recantation. (5)  On discretionary review, we reversed and remanded to the Court of Appeals
to consider the appellant's other point of error. (6)
	On remand, the Court of Appeals, in a split decision held that the State withheld
favorable and material information in violation of Brady. (7)  As a result, the Court of
Appeals reversed the conviction a second time.  The State filed a motion for rehearing,
which was denied.  On the State's petition for discretionary review, the Court of Appeals
withdrew its prior opinion and issued a new opinion, holding that the appellant either
preserved or did not need to preserve his Brady claim for appeal and that the State
violated Brady. (8)
	We granted the State's petition for discretionary review to determine (1) whether a
Brady claim must be preserved, (2) if so, whether the appellant preserved his claim for
review, and (3) if preserved whether the Court of Appeals erred in finding that the State
violated Brady. (9)
 
II.  Preservation of Error

	The State argues that the appellant did not preserve for appellate review his Brady
claim because the appellant did not mention Brady in his motion for new trial or during
the hearing on the motion.  Also, the State points out that the trial court did not mention
Brady in its order denying the motion.
	The appellant argues that the claim was preserved for review because the Brady
allegations were apparent from the motion and from the hearing on the motion.  The
appellant says that the Brady material was intertwined with the recantation evidence and
that the State never objected to the scope of the hearing.
	Because of the nature of the appellant's complaint on appeal--that the trial court
erred in denying his motion for new trial--he must have raised the Brady complaint at
some point during the motion for new trial proceedings to preserve the complaint for
appellate review. (10)  In this case, the appellant was required to make the trial court and the
State aware of his complaint before raising it on appeal:  The trial court cannot be said to
have erred in denying a motion for new trial on a basis that was not presented to it.
	We have said that we should avoid splitting hairs when determining whether a
claim has been procedurally defaulted. (11)  "All a party has to do to avoid the forfeiture of a
complaint on appeal is to let the trial judge know what he wants, why he thinks himself
entitled to it, and to do so clearly enough for the judge to understand him at a time when
the trial court is in a proper position to do something about it." (12)  We should consider the
context when we determine whether a party has preserved a complaint for appeal. (13)
	We recently held in Gallups v. State that the defendant had preserved for review
his claim about consent to enter his home, even though he failed to mention Code of
Criminal Procedure Article 14.05(1) in his motion to suppress and during the hearing. (14) 
The defendant had filed a motion to suppress in which he claimed that his arrest violated
Article 14.04.  We explained that the issue was preserved for review because it had been
litigated during the hearing on the motion. (15)  More specifically, the facts of that case show
that the legal and factual questions about the officer's consent to enter the home and the
authority to arrest the defendant in the absence of a warrant were intertwined.
 Gallups is distinguishable from the present case because both the factual and legal
issues were intertwined and related.  In this case, the factual issues may have been
intertwined, but the legal issues were not.  
	The evidence that the appellant claims preserved the Brady issue for review were
relevant to the appellant's actual innocence claim.  The fact that Rhonda and Travis
claimed to tell the prosecutor before trial that they thought that the complainant was lying
supported the complainant's recantation because it was some evidence, purportedly
existing before the trial, that was consistent with the recantation.  The appellant did not
mention Brady in his motion or during the hearing on the motion, and did not include any
Brady-related cases in his post-hearing submission.  And a Brady claim requires that the
defendant show by a preponderance of the evidence that evidence was withheld, that it
was favorable to the defense, and that the evidence was material. (16)
	The record supports the conclusion that neither the State nor the trial court
understood that the appellant was raising a Brady claim.  The prosecutor to whom
Rhonda and Travis allegedly spoke to about the complainant's lying was present in the
court room and cross-examined the witnesses.  He did not admit, deny, or explain the
allegation during the hearing on the motion for new trial, (17) even though another
prosecutor was present.  Had the prosecutor been aware that the appellant was making a
Brady claim, he could have testified about it.  Also, the trial court's order denying the
motion does not mention Brady. 
	All of these facts indicate that the appellant did not raise a separate claim related to
Brady.  As a result, the appellant did not preserve for appellate review his complaint that
the trial court erred in failing to grant his motion for new trial on the basis of a Brady
violation.  Because we conclude that the appellant was required to preserve this particular
claim for appellate review, and because the record indicates that the appellant did not, we
need not reach the other grounds on which we granted review.
III. Conclusion

	The appellant did not preserve for review his complaint on which the Court of
Appeals reversed the conviction, we hold that the Court of Appeals erred.  We reverse the
judgment of the Court of Appeals and affirm the trial court's judgment.

Delivered:  April 6, 2005.
Publish.
1. Brady v. Maryland, 373 U.S. 83 (1963).
2. Keeter v. State, 105 S.W.3d 137, 144, 147 (Tex. App.--Waco 2003); id., at 149-50
(Davis, C.J., concurring).
3. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) (holding that bare innocence
claims may be brought in post-conviction habeas proceedings); Tuffiash v. State, 878 S.W.2d 197
(Tex. App.--San Antonio 1994, pet. ref'd) (holding that post-conviction habeas relief is an
appropriate remedy for a claim of newly discovered evidence of actual innocence when
knowledge of perjurious testimony can be imputed to the prosecution); Villareal v. State, 788
S.W.2d 682 (Tex. App.--Corpus Christi 1990, no pet.) (holding that the trial court abused its
discretion in failing to grant motion for new trial based on victim's recantation) .
4. Moreno v. State, 1 S.W.3d 846 (Tex. App.--Corpus Christi 1999, pet. ref'd); Hoyos v.
State, 951 S.W.2d 503 (Tex. App.-- Houston [14th Dist.] 1997, aff'd by 982 S.W.2d 419 (Tex.
Crim. App. 1998); Driggers v. State, 940 S.W.2d 699 (Tex. App.--Texarkana 1996, pet. ref'd);
Ashcraft v. State, 918 S.W.2d 648 (Tex. App.--Waco 1996, pet. ref'd); Banda v. State, 727
S.W.2d 679 (Tex. App.--Austin 1987, no pet.).
5. Keeter v. State, 43 S.W.3d 667, 676 (Tex. App.--Waco 2001).
6. Keeter v. State, 74 S.W.3d 31, 39 (Tex. Crim. App. 2002).
7. Keeter v. State, 97 S.W.3d 709 (Tex. App.--Waco 2003).
8. Keeter, 105 S.W.3d at 144, 147 (holding that Brady claims need not be preserved for
appellate review and that the State withheld favorable and material information); id., at 149-50
(Davis, C.J., concurring) (concluding that the appellant did preserve error); see id., at 154 (Gray,
J., dissenting) (concluding that the appellant did need to preserve the Brady claim for review and
that he did not preserve the complaint).
9. The precise grounds on which we granted review are

	1.  Did the Court of Appeals err by concluding that a Brady violation could be
raised for the first time on appeal?

	2.  Did the Court of Appeals err by concluding that the appellant had preserved for
review his contention that the State had committed a Brady violation?

	3.  Did the Court of Appeals err by failing to address a potentially dispositive
argument raised by the state?

	4.  Did the Court of Appeals apply an improper standard of review in determining
whether the trial court should have granted a new trial?

	5.  Did the Court of Appeals err in accepting, as credible, testimony which was
contrary to the trial court's ruling on a motion for new trial?
10. We do not address whether a defendant may raise for the first time on appeal a more
general Brady claim that the State withheld favorable and material evidence from the defendant
because it is not presented in this case.
11. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
12. Ibid.
13. Ibid.
14. Gallups v. State, 151 S.W.3d 196, 198 n.1 (Tex. Crim. App. 2004).
15. Ibid.
16. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).
17. Compare Ramon v. State, No. PD-2030-03, slip op., at 5-6, 2004 Tex. Crim. App.
LEXIS 2144 (Tex. Crim. App. delivered December 15, 2004) (stating that State and defense
lawyers should not testify before the jury).
