Opinion issued July 25, 2013.




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00518-CR
                           ———————————
                     RODNEY SCOTT SMITH, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                    On Appeal from the 56th District Court
                          Galveston County, Texas
                       Trial Court Case No. 11CR2100



                         MEMORANDUM OPINION

      A jury convicted appellant, Rodney Scott Smith, of aggravated assault of a

public servant1 and assessed punishment at 25 years’ confinement. In six issues on


1
      See TEX. PENAL CODE ANN. §§ 22.01, 22.02(b)(2)(B) (Vernon Supp. 2011).
appeal, appellant contends (1) there is insufficient evidence to support his

conviction; (2) the trial court erred in refusing to submit a jury instruction under

Article 38.23 of the Texas Code of Criminal Procedure; (3) the trial court erred in

denying his motion to suppress; (4) the State violated appellant’s rights to due

process under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); (5) the trial

court erred in denying appellant’s amended motion for new trial; and (6) the State

committed prosecutorial misconduct by misleading appellant to believe that it

would not oppose his motion for new trial. We affirm.

                                BACKGROUND

      On the evening of Sunday, July 24, 2011, Bayou Vista Police Officer T.

Krietemeyer received a dispatch call instructing him to go to 888 Bonita in Bayou

Vista, Texas, to respond to a harassment call. At that location, he spoke to Samitha

Hess, who showed him a text message she had received from appellant, who lived

next door. The text read, “If nobody told you they love you today i love you.”

Hess told Krietemeyer that appellant was harassing her and that she wanted

appellant to stop texting her and trying to contact her. Krietemeyer walked next

door to appellant’s house to attempt to speak with him, but appellant did not

answer the door. Krietemeyer returned to Hess’s house and told her that there was

nothing else he could do at the time, but that he could get a warrant against




                                         2
appellant for harassment by Wednesday. Krietemeyer then returned to the police

station.

       At the station, Krietemeyer began typing up the paperwork necessary to

obtain an arrest warrant. He also requested Galveston County dispatch to obtain a

“rap sheet” for appellant and to determine whether appellant had a concealed

handgun license. Shortly thereafter, Krietemeyer received a fax that he described

at a “hit confirmation” from dispatch indicating that there was an outstanding

warrant in Harris County for appellant based on unpaid child support. The fax also

indicated that appellant possessed a concealed handgun license.

       Krietemeyer continued drafting his paperwork, but received another call

from dispatch telling him to return to Hess’s home. Before he left on the second

call to 888 Bonita, Krietemeyer received confirmation from dispatch that they had

called and verified that the warrant for appellant was still good and that police

should take him into custody if he were located. Specifically, when questioned

about whether he had confirmed the information in the fax, Krietemeyer stated, “It

was actually dispatch had already spoken with that particular office and said that

the warrant is good and if we—if I could come in contact with Mr. Smith, they

would place a hold on him until the proper agency could come down and—.”

       Upon returning to Hess’s home, Krietemeyer again spoke with Hess, who

told him that appellant had sent her another text message and, when she went

                                        3
outside to smoke a cigarette, appellant had stood out in the street in front of her

home and stared and waved at her.

      Krietemeyer again went next door to try and speak with appellant, but

appellant, who was home, would not answer the door. Krietemeyer looked up and

saw appellant standing in a second story window, so he indicated for appellant to

open the window, which he did. Krietemeyer asked appellant to come down and

talk, but appellant declined. Krietemeyer told appellant about his conversations

with Hess, indicated that he would be obtaining a warrant to arrest appellant for

harassment, and told appellant to “have a good day.”

      Krietemeyer returned to speak with Hess, and as he was talking with her,

appellant emerged from his house and stood near the rear of his truck in the

driveway. Krietemeyer approached appellant, who seemed “calm but jumpy.”

Krietemeyer and appellant had a conversation about the harassment call from Hess.

Appellant explained that he and Hess used to be really good friends, but that

appellant had made a mistake about a year before by getting upset that Hess had

gone out with someone else. Appellant said that he really liked Hess that that he

wanted things to go back to the way they were before. The conversation between

appellant and Krietemeyer did not involve any raised voices, shouting, or anger.

      After appellant told Krietemeyer his “side of the story,” Krietemeyer said to

appellant, “Sir, can you turn around and put your hands behind your back? You

                                         4
have a warrant for arrest.” When Krietemeyer reached for his handcuffs, appellant

“jumped back and his left hand went around to the left rear pocket . . . of the shorts

that he had on.” Krietemeyer stated that appellant “was vigorously jerking at his

pocket,” as he began backing up. Krietemeyer, knowing that appellant had a

concealed handgun license, assumed that appellant was reaching for a gun, so he

drew his own weapon and began moving to try to keep appellant in sight. As he

was moving, Kreitememeyer told appellant, “Don’t do this. Don’t do this. It’s not

worth it.” Because it was dark, Krietemeyer did not see appellant’s gun until he

saw a muzzle flash. Krietemeyer then returned fire. Subsequent investigation

showed that appellant fired twice and Krietemeyer fired three times. Neither man

was injured, and Kreitmeyer was subsequently arrested for assault of a public

servant.

      Appellant, testifying in his own behalf, presented a different version of the

events surrounding the altercation.        Appellant testified that after he told

Krietemeyer that Hess was his girlfriend and that they had had a “spat” that he was

trying “to patch up,” Krietemeyer told appellant to put his hands on the truck.

When appellant questioned the necessity, Krietemeyer dropped the handcuffs he

had been holding and began “rushing” appellant. Appellant said that Krietemeyer

told him, “I am going to shoot you,” and started pulling out his firearm, raising it to

appellant’s head. Appellant testified that he was in fear of his life so he took out

                                          5
his own firearm and fired twice. Appellant also testified that about a month earlier,

another Bayou Vista police officer, R. Shannon, had approached appellant at his

home and told him that if he ever talked to Hess again he would “hurt him real

bad.”

                      SUFFICIENCY OF THE EVIDENCE

        The jury charge in this case provided:

        Now, if you find from the evidence beyond a reasonable doubt that on
        or about the 24th day of July, 2011, in Galveston County, Texas, the
        Defendant, Rodney Scott Smith, did then and there intentionally or
        knowingly threaten Timothy Krietemeyer with imminent bodily injury
        by discharging a firearm at said Timothy Krietemeyer and did then
        and there use or exhibit a deadly weapon, to wit: a firearm during the
        commission of said assault and the Defendant did then and there know
        that the said Timothy Krietemeyer was a public servant, to-wit: a
        Bayou Vista Police Department officer and that the said Timothy
        Krietemeyer was there lawfully discharging an official duty, to-wit:
        attempting to take the Defendant in custody on an outstanding arrest
        warrant, as alleged in the indictment, then you will find the Defendant
        guilty of aggravated assault against a public servant.

        In his first issue on appeal, appellant contends that there was insufficient

evidence to show that Krietemeyer was “attempting to take the Defendant in

custody on an outstanding arrest warrant.”

Standard of Review

        We review evidentiary sufficiency challenges under the Jackson v. Virginia

standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a

                                           6
reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.”)(referring to Jackson v. Virginia, 443 U.S. 307, 99 S.

Ct. 2781, (1979)). Under this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      Viewed in the light most favorable to the verdict, the evidence is insufficient

when either: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense; or (2) the evidence conclusively

establishes a reasonable doubt. See Laster, 275 S.W.3d at 518. This standard

applies equally to both direct and circumstantial evidence. King v. State, 895

S.W.2d 701, 703 (Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d).

      We do not weigh any evidence or evaluate the credibility of any witnesses,

as this was the function of the fact finder. Williams, 235 S.W.3d at 750. Instead, we

determine whether both the explicit and implicit findings of the fact finder are

                                         7
rational by viewing all the evidence admitted at trial in the light most favorable to

the verdict and resolving any inconsistencies in the evidence in favor of the

verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

Analysis

      Appellant argues that “nowhere in the record does the State establish that

Krietemeyer had a valid, outstanding warrant for Appellant’s arrest the evening of

July 24, 2011.” In support, he points to testimony in which Krietemeyer states that

(1) the fax he received, which was admitted as State’s Exhibit 8, was not a warrant;

(2) he would only detain, not arrest, a person if a warrant had not been confirmed,

and (3) that he, personally, never confirmed the existence of the warrant.

Appellant also points out that the State did not admit Exhibit 8 for the truth of the

matter, but only to explain why Officer Krietemeyer acted as he did.

      In response, the State agrees that the fax in Exhibit 8 is not a warrant, but

argues that the record nonetheless contains evidence that a valid warrant existed.

Specifically, there was evidence that Krietemeyer has requested that dispatch

determine whether there were outstanding warrants for appellant. There was also

evidence that dispatch had checked with the Texas Crime Information Center and

the National Crime Information Center and received a “hit,” indicating an

outstanding warrant for appellant. Dispatch then faxed this information to Officer

Krietemeyer.    And, despite appellant’s argument that this “hit” was never

                                         8
confirmed, Krietemeyer testified that “dispatch had already spoken with that

particular office and said that the warrant is good,” and that he should arrest

appellant if he came in contact with him.

       This Court considered whether there was sufficient evidence to show an

outstanding warrant when the warrant itself was not admitted into evidence in the

case of State v. Maldonado, 176 S.W.3d 419 (Tex. App.—Houston [1st Dist.] 2004,

no pet.). In Maldonado, as here, the State introduced evidence, by way of the arresting

officer, that he had arrested the defendant based on an outstanding warrant, the validity of

which had been confirmed by dispatch. Id. at 420-21. In a motion to suppress, appellant

contended that there was no warrant, and the trial court apparently agreed by granting the

defendant’s motion to suppress. Id. On appeal, the State argued that, in light of the

officer’s testimony, there was sufficient evidence to support the existence of a valid

warrant, even though it was not admitted at trial. Id. This Court noted that, because no

warrant was admitted into evidence, the existence of a valid warrant rested entirely on the

credibility of the officer’s testimony that such a warrant existed and had been confirmed.

Id. at 421–22. This Court noted that the trial court was free to disbelieve the officer’s

testimony about the existence of the warrant, even though that evidence was

uncontroverted. Id. at 422. As such, the trial court did not abuse its discretion in

granting the defendant’s motion to suppress. Id.

       The same evidence is present in this case. There is no warrant in evidence,

however there is Officer Krietemeyer’s testimony that such a warrant existed and had


                                             9
been confirmed by dispatch. The key difference is that, in this case, the fact finder

believed the officer on this credibility issue. Just as the trial court was free to disbelieve

the officer in Maldonado, the jury was entitled to believe Officer Krietemeyer here. We,

as an appellant court, do not weigh any evidence or evaluate the credibility of any

witnesses, as this was the function of the fact finder. Williams, 235 S.W.3d at

750. Because Krietemeyer testified that there was an outstanding warrant, which

dispatch had confirmed, and the jury believed this evidence, the evidence is legally

sufficient to support the judgment on this issue.

       Accordingly, we overrule issue one.

                          ARTICLE 38.23 INSTRUCTION

       In his second issue, appellant contends the trial court erred in denying his

request for a jury instruction under TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon

2005). Appellant argues that he was entitled to such an instruction because “Krietemeyer

was without legal grounds to attempt to arrest Appellant the evening of July 24, 2012.”

Applicable Law

       Article 38.23(a) of the Texas Code of Criminal Procedure provides as

follows:

       No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be
       admitted in evidence against the accused on the trial of any criminal
       case.


                                             10
      In any case where the legal evidence raises an issue hereunder, the
      jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a). An article 38.23 instruction directs a

jury to disregard evidence if it resolves, in a defendant’s favor, a factual dispute

concerning the manner in which the evidence was obtained. Hanks v. State, 104

S.W.3d 695, 700 (Tex. App.—El Paso 2003), aff’d, 137 S.W.3d 668 (Tex. Crim.

App. 2004). If the defendant successfully raises factual disputes over whether

evidence was illegally obtained, inclusion of a properly worded article

38.23 instruction is mandatory. Id. (citing Bell v. State, 938 S.W.2d 35, 48 (Tex.

Crim. App. 1996)).

      A defendant’s right to the submission of jury instructions under article

38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional   or    statutory   violation    that    would    render     evidence

inadmissible. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).

A defendant must meet the following three requirements before he is entitled to

submission of an article 38.23(a) jury instruction: (1) The evidence heard by the

jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively

contested; and (3) the contested factual issue must be material to the lawfulness of

the challenged conduct in obtaining the evidence. Id.

                                         11
Analysis

       The State responds that article 38.23 does not apply to provide “any protection to

commit a new crime and then to exclude any evidence of that new crime” by arguing that

the police acted illegally. We agree with the State.

       In State v. Iduarte, the defendant was convicted of aggravated assault on a peace

officer because he pointed a gun at an officer after the officer unlawfully entered his

home. 268 S.W.3d 544, 547–48 (Tex. Crim. App. 2008). The defendant claimed that the

officer’s testimony about the assault should be excluded as fruit of the unlawful entry. Id.

The court of criminal appeals disagreed, holding that “evidence of the [assault] did not

exist before the [unlawful entry] because the [assault] had not yet occurred,” and thus the

evidence was not causally connected to the unlawful entry. Id. at 551. Therefore, the

court concluded that the subsequent independent criminal act was not tainted by the

initial unlawful entry, and the exclusionary rule was not applicable. Id. In so holding, the

court noted as follows:

       Appellee’s argument, carried to its extreme logical conclusion, would
       provide legal protection to the murderer of a police officer, who proves that
       the officer detained him without articulable suspicion prior to the murder.
       Under appellee’s theory, evidence of that killing would have to be
       suppressed under article 38.23 because the murder occurred after and
       because of the officer’s initial “illegal” conduct. That theory is not the law.

Id. at n.14 (quoting Martinez v. State, 91 S.W.3d 331, 340 (Tex. Crim. App. 2002)).

       Even if we were to accept appellant’s argument that he was illegally arrested, we

would nonetheless conclude that Officer Krietemeyer’s conduct in making an illegal

arrest would not require suppression of appellant’s own subsequent illegal conduct in


                                             12
firing at the officer, the offense with which he is charged. “Evidence of the charged

offense did not exist before the officer’s challenged actions because the charged offense

had not yet occurred,” and appellant’s subsequent independent criminal act “was not

causally connected to any unlawful [action] by a state agent.” Thus, the exclusionary rule

was not applicable and the trial court did not err in overruling appellant’s request for an

article 38.23 instruction See Iduarte, 268 S.W.2d at 551; Martinez, 91 S.W.3d at 340;

Goodwin v. State, 376 S.W.3d 259, 267 (Tex. App.—Austin 2012, pet. ref’d).

       We overrule issue two.

                              MOTION TO SUPPRESS

       In issue three, appellant argues that the trial court erred in denying his

motion to suppress “based on the lack of probable cause for his arrest or lack of a

valid arrest warrant.” Specifically, appellant argues that the trial court should have

suppressed “all evidence of events occurring after Appellant and Krietemeyer’s

short conversation during his second visit to Appellant’s residence,” which

includes appellant’s firing of shots at the officer.

       For the same reasons given in our analysis of appellant’s request for an

article 38.23 instruction, we also conclude that the trial court did not err in denying

appellant’s motion to suppress. See Iduarte, 268 S.W.3d at 549–51 (holding trial

court did not err in overruling motion to suppress evidence of crime committed by

defendant after alleged illegal arrest).



                                            13
      Furthermore, appellant’s motion to suppress is based on the assertion that

the State did not prove that it had a valid warrant for appellant’s arrest. However,

the law begins with a presumption of proper and lawful conduct by police. State v.

Robinson, 334 S.W.3d 776, 778–79 (Tex. Crim. App. 2011). The defendant bears

the burden of producing evidence that shows that an arrest was illegally made. Id.

at 779–80 (Cochran, J., concurring). A defendant can meet his initial burden of

showing an illegal arrest by producing some evidence that (1) he was arrested, and

(2) the police did not have a warrant. Id. The burden then shifts to the state to

show (1) that the police did, in fact, have a warrant, or (2) the reasonableness of the

warrantless arrest. Id.

      As the movant in the motion to suppress, it was appellant’s burden to show

that he was arrested without a warrant. Only then would the burden shift to the

State to show that it did, in fact, possess a warrant.

      Here, appellant never met his initial burden of showing that there was no

outstanding warrant. The fact that Officer Krietemeyer’s fax was not itself a

warrant, is no evidence that such a warrant did not exist. In fact, the fax, while not

a warrant, is some evidence that such a warrant existed.

       And, even though the burden had not shifted to the State to do so, it

nonetheless introduced evidence that dispatch had checked with the Texas Crime

Information Center and the National Crime Information Center and received a

                                           14
“hit,” indicating an outstanding warrant for appellant. Dispatch then faxed this

information to Officer Krietemeyer. The dispatcher also told Krietemeyer that it

had checked with the agency that issued the warrant and confirmed that it was still

a good warrant and that officers should arrest appellant if they came in contact

with him.    Because the State produced evidence that appellant was arrested

pursuant to a warrant, even though it did not have the burden to do so, the trial

court did not err in overruling appellant’s motion to suppress.

      We overrule issue three.

                                  BRADY VIOLATON

      In issue four, appellant contends the State violated appellants constitutional

rights by withholding information that he was entitled to under Brady v. Maryland,

373 U.S. at 87, 83 S. Ct. at 1196, and Giglio v. United States, 405 U.S. 150, 154,

92 S. Ct. 763, 766 (1972). In issue five, appellant contends the trial court erred in

denying his motion for new trial, which was based on the same grounds. In both

issues, appellant argues that the State was in possession of evidence that could

have been used to impeach Officer Krietemeyer, but did not turn over such

material until after the trial was concluded. Specifically, appellant argues that,

several months before the trial, the District Attorney’s office was made aware that

the Texas Department of Public Safety [“DPS”] was investigating Krietemeyer for

violating section 1702.322 of the Texas Occupations Code by working five extra

                                         15
jobs as a security officer when his license as a reserve peace officer did not permit

him to do so. See TEX. OCC. CODE ANN. § 1702.322(2) (Vernon 2012). DPS had

requested in January, two months before appellant’s March trial, that the Galveston

County District Attorney bring misdemeanor charges against Krietemeyer, but no charges

were ever brought.

Background

       After the trial, but during the time in which a motion for new trial could be filed,

the prosecutor in this case, Jon. L. Hall, sent the following letter to defense counsel:

       Dear Mr. Jaworski:

               It has come to my attention that the complainant witness in the
       above case, Timothy Krietemeyer, has resigned from the Bayou Vista
       Police Department after being informed by the Chief of that Department
       that an investigation was underway concerning whether Mr. Krietemeyer
       had improperly worked side jobs while a Reserve Police Officer. Neither I
       nor Reese Campbell was aware of this investigation before or during the
       trial; we learned of the possibility of such an investigation when Mr.
       Campbell spoke to Mr. Krietemeyer several days after the trial ended.

              I am now informed that in January 2012 the Department of Public
       Safety had forwarded an investigation report to this office for review and
       decision whether charges would be accepted. No decision, had, or has,
       been made about whether charges will be accepted. The District Attorney
       did not connect the report to the trial of Mr. Smith.

              On April 3, 2012, Bayou Vista Police Chief Paul Odin informed Mr.
       Krietemeyer that he had learned of the DPS investigation. This occurred
       after Mr. Krietemeyer had completed his testimony.

              This information is being provided now, within the period for
       requesting a new trial, so that you may use it for that purpose if you so
       choose.

              Thank you for your attention in this matter. Sincerely,

                                             16
                                            /Jon. L. Hall
                                            Assistant Criminal District Attorney

Appellant, did, in fact, file a motion for new trial, in which he asserted that the State’s

failure to inform him of the investigation before trial deprived him of impeachment

evidence that he was entitled to under Brady/Giglio. Apparently, the State did not intend

to oppose the motion, which was supported by affidavits. However, the trial court

insisted on a live hearing, stating, “The public safety, of course, is very important; and

maybe people would like to avoid a hearing on this motion, maybe even to the point of

agreeing to a new trial. But there’s just way too many players involved than just the

parties that sit in this courtroom.” Thereafter, the State did oppose the motion, and a full

hearing on the merits was had.

       At the hearing, the following evidence was adduced:

       In January 2012, two months before the trial, Officer Krietemeyer told his

sergeant, R. Shannon, of the Bayou Vista Police Department, that a friend who worked at

the Texas City Police Department told him that that department was investigating him for

working extra jobs. During that same month, Galveston Assistant District Attorney

Timothy Weems, met with an officer from the Texas City Police Department and a

trooper from DPS, who wanted charges brought against Krietemeyer for violating the

Occupations Code. Three days later, on January 9, Weems gave the report to District

Attorney Jack Roady, who put the report on his desk to review before deciding whether

to act on the request.




                                            17
       In mid-March 2012, just before the trial in this case, Mr. Alvarez, a retired

Galveston police officer contacted the chief of the Bayou Vista Police Department, Paul

Odin, and told him that DPS and the Texas City Police Department were investigating

Krietemeyer for violating the Occupations Code. Odin followed up on April 2nd or 3rd

by conferring with a detective from DPS about the investigation.

       On April 3, 2012, sometime after Krietemeyer had testified in the present case,

Chief Odin met with Krietemeyer and told him that he was under investigation by DPS

for working extra jobs, and that the investigation had been forwarded to the District

Attorney. In his report, Odin noted that Krietemeyer “admitted to working 5 extra jobs

between Texas City, Galveston and the Galveston County Fair.” Odin told Krietemeyer

that the Bayou Vista Police Department would be opening its own investigation. Odin

then gave Krietemeyer the opportunity to resign, which he did.

       After Krietemeyer’s resignation, Odin spoke to District Attorney Jack Roady on

April 3, 2012, and informed him that Krietemeyer was under investigation. At this point,

District Attorney Roady made the connection between Krietemeyer, the complainant in

this case, and the report about the officer under investigation by the DPS, which he had

been given back in January. Once he realized the connection, the District Attorney had

his prosecutor, Jon Hall, send the letter to defense counsel that is detailed above.

Standard of Review and Applicable Law

       We review a trial court’s ruling on a motion for new trial using an abuse-of-

discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).


                                             18
We view the evidence in the light most favorable to the trial court’s ruling and

uphold the ruling if it was within the zone of reasonable disagreement. Id. A

defendant need not establish reversible error as a matter of law before the trial

court may exercise its discretion to grant a motion for new trial, but trial courts do

not have discretion to grant a new trial unless the defendant demonstrates that the

first trial was seriously flawed and that the flaws adversely affected his substantial

rights to a fair trial. See State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App.

2007).

      In Brady v. Maryland, the Supreme Court held “that the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. 1196–

97. Giglio v. United States extended this rule to include impeachment evidence as

well as exculpatory evidence. 405 U.S. 150, 153–154, 92 S. Ct. 763, 765–66. To

establish entitlement to a new trial based on Brady violation, a defendant must

demonstrate that

      (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 different.
                                         19
Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Additionally, we

require that the evidence central to the Brady claim be admissible in court. Ex

parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993).

      The State argues that there is no Brady violation because “appellant did not

show that the information [regarding the DPS investigation of Krietemeyer] would

have been admissible.” The trial court apparently agreed because at the conclusion

of the motion for new trial hearing, the trial court stated, “If we admit all

accusations against all witnesses when based on nothing more than just

accusations, we would have trial within trials within trials; and that’s why the rule

of evidence require more than accusations. And accusations don’t make for Brady

material.” We agree. Although appellant cites no authority for admissibility of the

potential impeachment evidence regarding DPS’s investigation of Krietemeyer for

Occupations Code violations, we will nonetheless review several possible bases for

the evidence’s admission.

      Evidence of other crimes, wrongs or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. TEX. R.

EVID. 404(b). However, a defendant may offer evidence of the victim’s character

trait for violence to demonstrate that the victim was, in fact, the first aggressor.

TEX. R. EVID. 404(a)(2). Here, the DPS investigation about whether Krietemeyer

had violated the Occupations Code had no bearing on his propensity for violence
                                         20
or whether he was the first aggressor. Thus, the evidence of the investigation was

not admissible under TEX. R. EVID. 404(a).

      With regard to a witness’s credibility, “Specific instances of the conduct of a

witness, for the purpose of attacking or supporting the witness’ credibility, other

than conviction of crime as provided in Rule 609, may not be inquired into on

cross-examination of the witness, nor proved by extrinsic evidence.” TEX. R. EVID.

608(b). Thus, defendant was not entitled to attack Krietemeyer’s credibility by

showing, pursuant to Rule 609(b), that he was under investigation for violating the

Occupations Code, a specific instance of misconduct.

      Under certain circumstances, a witness’s credibility may also be attacked by

evidence that he has been convicted of a felony or a crime of moral turpitude. TEX.

R. EVID. 609. Here, Kreitemeyer has not been convicted of, nor even charged

with, a crime. And, the crime for which he was being investigated was not a

felony or a crime of moral turpitude.

      Also under limited circumstances, evidence that charges have been filed

against a witness may become admissible upon a showing that such evidence tends

to establish prejudice, interest, bias or motive of the witness in testifying as he has.

Alexander v. State, 740 S.W.2d 749, 763 (Tex. Crim. App. 1987); Murphy v. State,

587 S.W.2d 718, 722 (Tex. Crim. App. 1979). However, appellant never argued




                                          21
that Kreitmeyer testified as he did because he was biased or had some interest in

doing so, and no charges were ever filed Kreitemeyer.

       Finally, to the extent that appellant seems to be arguing that Kreitemeyer

“opened the door,” by testifying on cross-examination that he left the Bayou Vista

Police Department “on good terms,” we note that a cross-examining party may not

impeach a witness during cross-examination on a collateral issue. Shipman v.

State, 604 S.W.2d 182, 183 (Tex. Crim. App. 1980).

       In Mares v. State, No. 14-00-01034-CR, 2001 WL 1013578 (Tex. App.—

Tex. App.—Houston [14th Dist.] Sept. 6, 2001, pet. ref’d) (not designated for

publication), the defendant in a DWI case attempted to impeach one of the police officers

involved in his arrest by introducing evidence that the officer was being investigated for

perjury.   Id. at *4.   The court of appeals held that the officer was merely under

investigation, and that the perjury investigation and the events giving rise to it could not

be used to attack his credibility in the present case.       Id.   The same is true here;

Krietemeyer was merely under investigation, and appellant has presented nothing to show

that such an investigation would have been admissible impeachment evidence at trial.

       Because appellant failed to show that the impeachment evidence of the DPS

investigation against Kreitemeyer would have been admissible at trial, we conclude

the trial court did not abuse its discretion in determining that appellant did not

establish a Brady violation. For the same reason, the trial court did not err in

overruling appellant’s motion for new trial on the same grounds.
                                            22
      We overrule issues four and five.

                      PROSECUTORIAL MISCONDUCT

      In his sixth issue on appeal, appellant contends the prosecutor committed

“prosecutorial misconduct by falsely informing Appellant in writing that it did not

oppose a new trial.” After the hearing, the prosecutor acknowledged, “There was a

point when we filed that last document that you cited when the State would have

agreed to a motion for new trial. We did not agree with the substance that the

Defendant put forward in their motion for new trial but would have agreed to a

motion for new trial. But since we went ahead with the hearing, we did not agree

that a motion for new trial should be granted.” From the record, it appears that the

State would have agreed to the granting of a motion for new trial without a

hearing, but when the trial court required an evidentiary hearing, the State felt that

it had to oppose the motion because it did not agree with its substance.

      In his brief, appellant cites no authority to support his position that, by

deciding to oppose the motion before the evidentiary hearing, the State committed

prosecutorial misconduct. Thus, the issue is waived. See TEX. R. APP. P. 38.1(i)

(stating that “brief must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record.”).

      And, even if we were to reach the merits and agree that appellant had shown

prosecutorial misconduct, we would nonetheless conclude that he failed to show

                                          23
harm. In his brief, appellant argued that the State’s conduct “placed Appellant in

the unenvieable position of having been mislead into believing the motion for new

trial was unopposed, all which the State fully intended, and then proceeded to

oppose the motion at the hearing.”

      Because no constitutional error is involved in the State “changing its mind”

and opposing the motion, we apply the harm standard in TEX. R. APP. P. 44.2(b),

and disregard “[a]ny other error, defect, irregularity, or variance that does not

affect” appellant’s substantial rights. Here, appellant was well-prepared for the

evidentiary hearing on the motion for new trial. In fact, counsel served subpoenas

on the District Attorney and Assistant District Attorney, both of whom were

compelled, over objection by the State, to testify. Appellant called four witnesses

who presented testimony relating to the circumstances of the DPS investigation

into Krietemeyer’s extra jobs and how that information came to be in the

possession of the Galveston District Attorney. Appellant also presented numerous

documents in support of his motion.

      However, appellant provides no information regarding how his conduct of

the hearing would have been different had he known earlier of the State’s

opposition. As such, he had failed to show that his “substantial rights” were

affected by the State’s decision to oppose the motion.

      We overrule issue six.

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                                   CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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