Opinion filed March 31, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-10-00074-CR
                                   __________

                  RODNEY GALE UNKART, Appellant

                                      V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 29th District Court
                          Palo Pinto County, Texas
                         Trial Court Cause No. 13570


         MEMORANDUM OPINION ON REMAND
      The jury convicted Rodney Gale Unkart of one count of the manufacture of
methamphetamine in an amount of four grams or more but less than 200 grams and
one count of possession of methamphetamine, with intent to deliver, in an amount
of four grams or more but less than 200 grams. The jury assessed Appellant’s
punishment at twelve years’ confinement and a fine of $10,000 on each count. The
trial court sentenced Appellant accordingly and ordered that the sentences run
concurrently. We affirm.
       In an earlier opinion, we reversed Appellant’s convictions in this case. 1 We
held that the trial court committed fundamental error because it improperly
commented on Appellant’s right to remain silent, that the improper comments
vitiated the presumption of innocence, and that the error was not harmless.
Therefore, we sustained Appellant’s first issue on appeal, and we remanded the
case for a new trial. We did not rule on Appellant’s other issue. Later, the Texas
Court of Criminal Appeals held that the trial court’s comments did not constitute
fundamental error, that Appellant’s motion for mistrial failed to preserve error on
his claim because any harm caused by the trial court’s comments could have been
cured by an instruction to disregard, and that, in fact, any harm was cured by the
totality of the trial court’s instructions to the jury. See Unkart v. State, 400 S.W.3d
94, 96 (Tex. Crim. App. 2013). The Court of Criminal Appeals reversed the
judgment of this court, and it remanded the case for us to resolve Appellant’s
remaining issue. Id. at 102.
       Appellant contends in his second issue that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose to Appellant’s counsel before
trial that it had entered into a plea agreement with a witness.
       On July 7, 2006, Officer Cora Gray of the Parker County Special Crimes
Unit and other police officers searched Appellant’s house and surrounding
property. When the officers arrived at the house, Jessica Pruitt was asleep in a
bedroom. The State listed Pruitt as a witness, and she was sworn in as a State’s
witness with three other witnesses at the beginning of trial.


       1
         See Unkart v. State, No. 11-10-00074-CR, 2012 WL 760798 (Tex. App.—Eastland Mar. 8,
2012), rev’d, 400 S.W.3d 94 (Tex. Crim. App. 2013).


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      As detailed below, the State presented extensive evidence in its case-in-chief
that Appellant committed the offenses of manufacturing methamphetamine and
possessing it with the intent to deliver as alleged in the indictment. During the first
day of testimony, the State learned that Pruitt had used methamphetamine the
previous night. The State advised the trial court that Pruitt had used
methamphetamine, that she appeared to be under the influence of the drug, and that
she was behaving “schizo.” Thus, the State informed the trial court that it could
not call Pruitt as a witness that day. The next morning, the State chose not to call
Pruitt and rested its case-in-chief.
      Appellant’s counsel then chose to call Pruitt as a witness. Appellant’s
counsel met with Pruitt before she testified. In his opening statement, Appellant’s
counsel had told the jury that “Jessica Pruitt, if she testifies, will tell you she never
saw [Appellant] cook dope [and] never saw him sell dope.”                    On direct
examination, Pruitt testified that she never saw Appellant manufacture or sell
methamphetamine. During cross-examination by the State, Pruitt admitted that
Appellant gave her methamphetamine and that she and Appellant used it together.
She also testified that she saw items in Appellant’s house that are used to
manufacture methamphetamine. Pruitt denied, however, that she told Officer Gray
that Appellant told her that he manufactured methamphetamine.
      At that point, the State sought to introduce an audiotape of an interview that
Pruitt gave to Officer Gray. The State did not produce the audiotape to Appellant’s
counsel before trial. The trial court excused the jury to allow Appellant’s counsel
and Pruitt to listen to the tape. After listening to the tape, Appellant’s counsel
informed the trial court that he had learned for the first time that Pruitt had
accepted a plea deal from Officer Gray that required Pruitt to testify against
Appellant. As part of the plea agreement, Pruitt agreed to plead guilty to a state


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jail felony offense, and the State agreed to dismiss three pending felony charges
against her.
      Appellant had filed a pretrial motion to require the State to reveal any
agreement it had with a witness that could influence that witness’s testimony. In
the motion, Appellant relied on Giglio v. United States, 405 U.S. 150 (1972). The
trial court had entered an order granting the motion. Appellant’s counsel stated
that, “if the State had complied [with the court’s order on any plea agreement] and
[given him] notice of the deal [with Pruitt], [he] never would have called her as a
witness.”      Appellant’s counsel objected to the admissibility of the audiotape,
requested the trial court to allow Appellant to withdraw Pruitt as a witness, and
moved for a mistrial. The trial court reasoned that its order that required the State
to disclose any agreement it had with a witness applied only to witnesses called by
the State. Therefore, the trial court concluded that the order did not apply to Pruitt
because the State had not called her as a witness.           The trial court denied
Appellant’s motion for mistrial, ruled that the audiotape was inadmissible, and
allowed Pruitt to continue testifying.
      On further cross-examination, Pruitt admitted that she believed she told
Officer Gray that Appellant manufactured methamphetamine.            Pruitt said that
Appellant asked her to sell methamphetamine for him.
      Appellant re-urged his motion for mistrial after the close of the evidence.
The trial court again denied the motion.
      Appellant contends in his second issue that the State’s failure to disclose its
plea agreement with Pruitt violated Brady. To establish reversible error under
Brady, a defendant 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
him; 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
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different. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011); Hampton v.
State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Favorable evidence is any
evidence that, if disclosed and used effectively, may make a difference between
conviction and acquittal and includes both exculpatory and impeachment evidence.
Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006).
      The third or materiality prong of Brady requires that the defendant be
prejudiced by the State’s failure to disclose the favorable evidence. Id. at 406.
The question is not whether the defendant would more likely than not have
received a different verdict with the undisclosed evidence but whether, in its
absence, he received a fair trial—understood as a trial resulting in a verdict worthy
of confidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995); Pena, 353 S.W.3d at
812 n.11. A “reasonable probability” that the outcome of the trial would have been
different is a probability sufficient to undermine confidence in the outcome of the
trial. United States v. Bagley, 473 U.S. 667, 682 (1985); Higginbotham v. State,
416 S.W.3d 921, 924 (Tex. App.—Houston [1st Dist.] 2013, no pet.).               The
materiality of undisclosed information is not sufficiently proven by showing a
mere possibility that the undisclosed information might have helped in the defense
or might have affected the outcome of the trial. Hampton, 86 S.W.3d at 612.
When evaluating whether the materiality standard is satisfied, we balance the
strength of the undisclosed evidence against the evidence supporting conviction.
Id. at 613.
      The evidence showed that Officer Gray received a tip from a person who
had been arrested on a drug charge that the person had purchased ingredients for
making methamphetamine to take to Appellant’s residence. Based on the tip,
Officer Gray, Officer James Peel, and other officers went to Appellant’s residence
to conduct a “knock-and-talk” with Appellant. The officers contacted Appellant at
his house. Officer Gray explained to Appellant that the police had received a
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complaint that narcotics were being manufactured at his residence. Officer Gray
asked Appellant whether the officers could look around his house and the property
outside the house. Appellant gave his consent for the officers to look around.
      Officer Gray and other officers went inside the house. Officer Peel and
another officer stayed outside and searched in the barn area. Appellant told Officer
Gray that he wanted to wake up a female who was asleep in the bedroom before
the officers started their search. The officers agreed to Appellant’s request, and
they followed Appellant. Pruitt was asleep in the bedroom.
      Appellant walked to a computer desk that was in the bedroom. He grabbed
something that was on the desk. Officer Gray testified that there was a pipe used
for smoking methamphetamine on the desk. Officer Gray asked Appellant what he
had in his hand. Appellant opened his hand and showed Officer Gray two baggies
of methamphetamine. Officer Gray seized the baggies from Appellant.
      Officer Peel requested Appellant to walk around the property with him.
Appellant agreed to the request. Appellant told Officer Peel that a lot of people
came to his property. Officer Peel testified that he found evidence that he thought
was related to manufacturing methamphetamine. Officer Peel asked Appellant
about the evidence. According to Officer Peel, Appellant was “pretty quick to
disassociate himself from that piece of evidence.” Officer Peel told Appellant that
“it was looking more and more like [Appellant] might be involved in the
manufacture of methamphetamine.” At that point, Appellant withdrew his consent
to the search.
      The officers stopped their search, detained Appellant and Pruitt, and secured
the premises.    Officer Gray left the house to obtain a search warrant for
Appellant’s property. She obtained a warrant and then returned to Appellant’s
residence. The officers then searched the house, a shed that was near the house,
and Appellant’s pickup that was parked in front of the house.
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      During the search, the officers found multiple baggies of methamphetamine,
ingredients that are used to manufacture methamphetamine, and items that are
commonly associated with the operation of clandestine methamphetamine labs.
One of the officers took photographs of the evidence that was found. The officers
provided detailed testimony about the “Nazi method” for manufacturing
methamphetamine; the process used to manufacture methamphetamine; ingredients
that are used to manufacture methamphetamine, such as ephedrine or
pseudoephedrine, lithium metal, and anhydrous ammonia; other items that are
commonly used in the manufacturing process, such as ether, starter fluid, lithium
batteries, coffee filters, tubing, containers, and a hydrochloric acid (HCl)
generator; and items that are commonly used in connection with the manufacture
and distribution of methamphetamine, such as digital scales, baggies, and
surveillance equipment.
      The officers found surveillance equipment at Appellant’s residence that
made it possible for people inside the house to monitor what was going on outside.
There were a number of surveillance monitors in the bedroom.              Surveillance
equipment    is   commonly    used   in       connection   with    the   operation   of
methamphetamine labs to detect the presence of law enforcement or potential
thieves. The officers also found a scanner on the computer desk in the bedroom
that could be used to monitor the activities of law enforcement. The officers found
two guns near the computer desk in the bedroom. They also found a container in
the bedroom that had two baggies of methamphetamine in it.
      Pseudoephedrine may be extracted from Sudafed pills. The officers found
multiple packages of Sudafed pills throughout the house. The officers found a
black bag in the bed of Appellant’s pickup. The black bag contained evidence of
methamphetamine manufacturing, including numerous packages of lithium
batteries and numerous baggies of methamphetamine.                The black bag also
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contained digital scales, needles, syringes, glass smoking pipes, additional plastic
baggies, coffee filters, and a cutting agent that is used to add weight to
methamphetamine.      The presence of digital scales, which are used to weigh
methamphetamine to package it for sale, indicated that Appellant intended to
distribute methamphetamine. The officers testified that methamphetamine is
commonly packaged for sale in plastic baggies. The officers also found a metal
container that contained methamphetamine that was packaged for sale in baggies.
      The officers found an HCl generator during their search. The neck of the
bottle of the generator contained corrosive material, which Officer Peel testified
was a byproduct of the process of manufacturing methamphetamine. The officers
also found multiple starter fluid cans that had holes punched in them. Officer Peel
said that starter fluid is ether, which is used in manufacturing methamphetamine.
He explained that pure ether can be obtained by turning a can of starter fluid upside
down and poking a hole in it to let all the pressure out of it. Officer Peel had seen
“punched” starter fluid cans only in connection with methamphetamine labs.
      In total, the officers found thirty baggies that contained methamphetamine.
The baggies were taken to the DPS laboratory for testing. William L. Todsen, a
forensic scientist with the DPS, tested the substances that were in the baggies.
Todsen testified that each of the individual bags contained a substance that
contained methamphetamine and that the total weight of the substances was 15.47
grams.
      Appellant states in his brief that “Pruitt’s testimony was devastating to an
otherwise circumstantial case” because “[s]he was the only witness to testify with
any alleged direct evidence of knowledge of Appellant’s manufacture of
methamphetamine.” However, as summarized above, the State presented strong
and compelling evidence of Appellant’s guilt.        The undisclosed evidence of
Pruitt’s plea agreement with the State was not exculpatory. Rather, it merely
                                          8
constituted potential impeachment evidence that related to Pruitt’s credibility as a
witness.   The State did not call Pruitt as a witness, and her testimony and
credibility were not important to the State’s case. The impact, if any, that the plea
agreement had on Pruitt’s testimony is unknown.            Balancing the potential
impeachment value of the undisclosed evidence against the evidence supporting
Appellant’s convictions, we conclude that there is not a reasonable probability that,
had the evidence been disclosed, the outcome of the trial would have been
different. Based on the evidence supporting guilt, we also conclude that there is
not a reasonable probability that, had Appellant not called Pruitt as a witness, the
outcome of the trial would have been different.          Therefore, the undisclosed
evidence was not material under Brady. Appellant has not shown that the State
violated Brady. Appellant’s second issue is overruled.
                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


March 31, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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