                                                                                       ACCEPTED
                                                                                   06-15-00112-CR
                                                                        SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                             10/21/2015 9:32:01 AM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK
                               No. 06-15-00112-CR
                         IN THE COURT OF APPEALS
                                                                 FILED IN
                                                  6th COURT OF APPEALS
                   FOR THE SIXTH APPELLATE DISTRICT
                                                             TEXARKANA, TEXAS
                                                           10/21/2015 9:32:01 AM
                                                               DEBBIE AUTREY
                             JEROME ANDERSON,                       Clerk

                                    APPELLANT
                                         v.
                            THE STATE OF TEXAS,
                                    APPELL EE


                             APPELLANT 'S BRIEF


                       On appeal from Cause No. 12-0427X
                             in the 71 st District Court
                             Harrison County, Texas


Robert Lee Cole, Jr.
409 N. Fredonia Street, Suite 101
Longview, TX 75601
SBOT: 0454 7800
903-236-6288 Phone
903-236-5441 Fax
rcolej d@gmail.com
Attorney for Appellant


                        Oral Argument is Not Requested
                  IDENTITY OF PARTIES AND COUNSEL

Jerome Anderson, Appellant
TDCJ #02001229
Joe F. Gurney Unit
1385 FM 3328
Palestine, TX 75803

Robert L. Cole, Jr.
Appellant's Counsel on Appeal
409 N. Fredonia Street, Suite 101
Longview, TX 75601

Tommy Jackson at Trial
Shawn Connally on Appeal
Prosecutor
Harrison County District Attorney's Office
P.O. Box 776
Marshall, TX 75671

Honorable Brad Morin
Presiding Trial Judge
71 st District Court
200 W. Houston Street, Suite 219
Marshall, TX 75670




                                       11
                               TABLE OF CONTENTS
Identity of Parties and Counsel                                                 11

Table of Contents                                                               iii

Index of Authorities                                                            IV


Statement of the Case                                                            1

Statement Regarding Oral Argument                                               1

Issues Presented                                                                2

         Issue No.1- The trial court erred by admitting into evidence the custodial
         interview of the defendant despite the defendant not waiving his right not to
         make any statement that might incriminate him.

      Issue No. 2- The trial court erred by denying appellant's motion for
      continuance to locate a witness in that the prosecutor failed to update the
      contact information in the state's witness list.

      Issue No. 3- The State failed to provide exculpatory or mitigating evidence
      in violation of the Confrontation Clause of the Sixth Amendment of the
      Constitution of the United States.

Statement of Facts                                                              2-7

Summary of the Argument                                                         8

Argument                                                                        8-19

Prayer                                                                          19

Certificate of Compliance                                                       20

Certificate of Service                                                          21

Appendix-Information-Cause No. 2:14-CR-5, U.S. v. West                          22

                                           lll
                          INDEX OF AUTHORITIES
CASES                                                        PAGE
Brady v. Maryland, 373 U.S. 83 (1963)                        16, 18-19
Colorado v. Connelly, 479 U.S. 157 (1986)                    11
Cooks v. State, 844 S.W.2d 697 (Tex. Crim. App. 1992)        13
Ex Parte Mitchell, 853 S.W.2d 1 (Tex. Crim. App. 1993)       16
Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995)   13
Hill v. State, 429 S.W. 2d 481 (Tex. Crim. App. 1968)        11
Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996)      13
Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010)        11
Kyles v. Whitley, 514 U.S. 419 (1995)                        14, 16-19
Miranda v. Arizona, 384 U.S. 436 (1966)                      9, 11
Rosales v. State, 841 S.W.2d 368 (Tex. Crim. App. 1992)      13 , 14
Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992)       16
United States v. Agurs, 487 U.S. 97 (1976)                   16
United States v, Bagley, 473 U.S. 667 (1985)                 17, 18


CONSTITUTIONAL PROVISIONS, CODES, RULES

U.S. Const. amend. V                                         8,9
U.S. Const. amend. VI                                        2 8-9
                                                              '
Tex. Code Crim.Pro. art. 29.03                               13
Tex. Code Crim.Pro. art. 29.06(a)                            13
Tex. Code Crim.Pro. art. 38.22                               8-9, 12
Tex. Health and Safety Code §481.112(£)                      1
Tex. Health and Safety Code § 481.113( d)                    1
Tex.R.App.Pro. 9.4                                           20
Tex.R.App.Pro. 43 .2                                         19


                                        lV
                           STATEMENT OF THE CASE

      Appellant was charged by indictment November 29, 2012 for the offense of

possession with intent to deliver a controlled substance namely cocaine in an

amount of 400 grams or more (Texas Health and Safety Code§ 481.1129(£)) in

Count I and possession with intent to deliver four or more grams but less than 400

grams of methyllenedioxymethamphatine in Count II (Texas Health and Safety

Code§ 481.113(d)). (CR p.7.). Both offenses were alleged to have occurred on or

about September 23, 2011. (CR p. 7). Appellant waived arraignment and entered

pleas of not guilty January 22, 2013. (CR p. 39). Appellant elected to waive his

rights to a jury trial June 17, 2014. (CR p. 70). A bench trial was held April 28,

2015 where evidence was heard and also May 7, 2015 at which time Appellant was

sentenced to 15 years confinement. (RR Vol.2 pp. 14-226, RR Vol. 3, pp. 4-15).

Motion for New Trial and Motion in Arrest of Judgment was filed May 20, 2015

and heard before the trial court July13 , 2015. (CR pp. 151-154, RR Vol. 5, pp. 4-

10). The Recorder's Record was filed August 25, 2015. Appellant's brief is due

and timely filed on or before October 26, 2014.



                STATEMENT REGARDING ORAL ARGUMENT

                          Oral Argument is Not Requested


                                          1
                                  ISSUES PRESENTED

         Issue No.1- The trial court erred by admitting into evidence the custodial

interview of the defendant despite the defendant not waiving his right not to make

any statement that might incriminate him.

         Issue No. 2- The trial court erred by denying appellant' s motion for

continuance to locate a witness in that the prosecutor failed to update the contact

information in the state' s witness list and provide exculpatory evidence prior to

trial.

         Issue No. 3- The trial court erred by not requiring the state to identify a

confidential informant in violation of the Confrontation Clause of the Sixth

Amendment of the United States Constitution. U.S. Const. amend VI.

                               STATEMENT OF FACTS

         On September 23, 2011 officers with the Marshall Police Department

searched a residence in Marshall, Texas based upon information contained in an

Affidavit for Search Warrant that was presented to a magistrate September 22,

2011 in Harrison County, Texas. (RR Vol. 5, Ex. 1). The affidavit for search

warrant relied upon assertions of a confidential informant, or CI, who purported to

be at the residence in question within 72 hours prior to the preparation of the

Affidavit for Search Warrant and claimed to have seen Appellant at the location


                                             2
and observed Appellant to be in possession of cocaine and marijuana. (RR Vol.5,

Ex. 1).

       Appellee, the State of Texas, provided a witness list that included the name

of William "Brody" West, an officer with the Marshall Police Department, and

provided his address at the office location of the Marshall Police Department. (CR

pp. 65-66) (RR Vol.2, pp. 14-28). Appellant filed a Motion for Continuance that

notified the trial court and the state, among other matters, that Appellant did not

have the identity of the confidential informant in order to properly confront

Appellant's accusers, and that Appellant also did not have the address of William

"Brody" West, also for the reason of confronting and examining his accusers and

pursuant to Tex. Code Crim. Pro. Art. 39.14. (CR pp. 108-110). The State was

aware that William "Brody" West was a subject of criminal investigation and

prosecution and conceded as much during their presentation in opposition to

Appellant's Motion for Continuance (RR Vol. 2, p. 27). The trial court denied

Appellant's Motion for Continuance, and proceeded with trial. (RR Vol. 2, p.28).

      Lieutenant Lynn Ames testified that he was a patrolman assigned to the

narcotics division and participated in the execution of a search warrant at

Appellant's (Anderson' s) house. (RR Vol.2, pp. 31-33). Ames testified that a

search of the residence turned up firearms and narcotics. (RR Vol.2, p.35).

Through Ames, the State introduced the return on the search warrant and


                                          3
photographs taken at the time of the search. (RR Vol.2 p. 37; RR Vol. 5, Exhibits).

Ames also testified as to the locations of the objects identified in the photographs

and that drugs, guns, razor blades and currency was found in the searched

residence (RR Vol. 2 pp. 33-88). Ames also testified he was of the opinion that

Anderson possessed the narcotics with the intent to distribute (RR Vol. 2, pp. 87-

88).

       Ames also testified how confidential informants were commonly used, and

that some would receive money while others would try to help themselves on

pending criminal cases. (RR Vol. 2, pp. 91-92). Ames also testified that William

"Brody" West was a narcotics officer at the time of the search and that West

participated in this investigation (RR Vol. 2, p. 92). Ames also testified that West

used confidential informants, that West resigned from the police department

because West was under investigation, that he was working with an informant, and

that something was being done incorrectly (RR Vol. 2, pp. 92- 93). Ames testified

that West had contact with the confidential informant in this case on more than a

few occasions. (RR Vol. 2, pp. 95-96). Ames also testified that he did not know

who was investigating West, but that he thought it was a federal investigation, and

that he assumed that the district attorney's office had been informed of the

investigation. (RR Vol. 2, pp. 93-94). Evidence collected by West was relied upon

by Ames in the course of the investigation of Anderson. (RR Vol 2, p. 100).


                                          4
      There was another individual in the house at the time of the search and in the

same proximity to all the seized evidence that the police did not arrest. (RR 2, Vol.

2, p. 96). Appellant again asked for and was refused the name of the confidential

informant in this case. (RR Vol. 2, pp. 99-100).

       Sarah Hodges was the crime scene officer and she took photographs of

various items collected at the scene in addition to the scene of the search itself; she

also testified as to taking collected substances to the crime lab for forensic

analysis. (RR Vol. 2, pp. 105-130). Hodges further stated that there were two

people at the home when the search began, that these individuals were removed

from the home during the search, and that no fingerprints were taken from the bags

of contraband seized. (RR Vol. 2, pp. 130, 141-142). She also admitted that there

was no way to say that appellant had ever touched the bags containing any of the

contraband and that no DNA samples were taken. (RR Vol. 2, pp. 130, 142-143).

      Hodges also testified that William "Brody" West prepared some of the

incident report, that he participated in the search of the house, and that he no longer

worked for the Marshall Police Department. (RR Vol. 2, pp. 143-144).

      Claybion Cloud III is a forensic chemist who has been employed at the

Department of Public Safety Crime Laboratory in Tyler, Texas for the past sixteen

years. Mr. Cloud testified as to his qualifications, the accreditation of the DPS lab,

and the process by which items are tested. (RR Vol. 2, pp. 145-149). Mr. Cloud


                                           5
identified those items that were taken to the lab in this case, described the tests he

performed, and the results of the testing (RR Vol.2, pp. 150-154, 157-159). He also

testified that the drug tested was cocaine and to the weight of each sample of drug

that he tested (RR Vol. 2, pp. 160-162). Mr. Cloud also testified that he saw no

evidence that the bags containing the drugs he tested had ever been fingerprinted.

(RR Vol. 2, p. 166). The State stipulated on the record that no fingerprints were

taken of any of the firearms seized. (RR Vol. 2, p. 167).

      Joe Bounds is an investigator with the Ha1Tison County District Attorney ' s

Office who was previously employed as a narcotics investigator with the Harrison

County Sheriff's Office. (RR Vol. 2, p. 168). On September 23 , 2011 Bounds,

along with William "Brody" West, conducted a custodial interview with the

Appellant that was recorded., and in which the defendant was told of his rights, but

not asked whether he waived his rights (RR Vol , 2, pp. 168-174). Bounds also

admitted that William "Brody" West is the one who advised appellant of his rights

and questioned him. (RR Vol.2, pp. 174-175). Bounds further testified that West

was no longer employed with the Marshall Police Department, that he was told that

the investigation of West was being conducted by the FBI (see Appendix), and that

the investigation was widely known by members of the Harrison County District

Attorney's Office. (RR Vol. 1, pp. 174-176)(see Appendix). He further stated that

West previously dealt with confidential informants, that he could not rule out that


                                           6
West had any contact with the informant in this case, and that he could not rule

out that the FBI investigation of West did not predate September 23, 2011. (RR

Vol. 2, pp. 174-178).

      Arllie Anderson is Jerome Anderson's mother, and she is the owner of the

house that was searched in this case. (RR Vol.2, pp. 187, 190). She also testified

that Appellant lived in the house on September 23, 2011 and that she came by

there some. (RR Vol. 2, p. 191). She also said that Jerome had been previously

shot, and that there was nothing illegal about owning firearms or surveillance

equipment especially after they had been shot. (RR Vol 2, pp. 202-205).




                                         7
                        SUMMARY OF THE ARGUMENT

      In his first issue, Appellant complains that the court admitted into evidence

the recordings of his custodial interview which are memorialized in State's

Exhibits 16 and 17. This interview was conducted in violation of Tex. Code Crim.

Pro. Art. 38.22 and the rights not to incriminate oneself and the right to counsel

protected by the Fifth and Sixth Amendments to the Constitution of the United

States.

      In his second point of error, Appellant asserts that the trial court erred by

denying appellant's motion for continuance in that information regarding the

location of a witness was incorrect and who was an investigating officer who is

under investigation for malfeasance.

      In his third point of error, Appellant argues that the state failed to provide

evidence which was mitigating or exculpatory in violation of his due process rights

provided by the Constitution of the United States.



                                   ARGUMENT
      ISSUE NO. 1- The trial court erred by admitting into evidence the

recordings of his custodial interview which are memorialized in State' s Exhibits 16

and 17. This interview was conducted in violation of Tex. Code Crim. Pro. Art.




                                          8
38.22 and the rights not to incriminate oneself and the right to counsel protected by

the Fifth and Sixth Amendments to the Constitution of the United States.

      After being placed into custody and taken to law enforcement offices,

former police officer William "Brody" West read Jerome Anderson his statutory

warnings pursuant to Art. 38.22. Investigator Joe Bounds of the Harrison County

District Attorney's Office was also present and assisted during the custodial

interview. The defendant did not clearly or affirmatively assert his understanding

of those rights, and he did not waive those rights. The defense disagrees with the

State's assertions as to the responses by Appellant. Neither of the peace officers

present asked the defendant if he waived his rights. Evidence before the trial court

from three defense witnesses, and investigating officer Lieutenant Len Ames is

that the defendant in this case has never been convicted of a felony in the State of

Texas, nor any other state. (RR. Vol. 2, pp.103 , 182, 187, 212). The defense timely

objected to the admissibility of the statement at trial 28 April 2015. (RR Vol. 2,

pp. 171-173).

      The requirement requiring police officers to read and secure waivers of the

United States Constitution right against self-incrimination was first recognized by

the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966).

Those Constitutional rights have been codified and enhanced by the Texas

Legislature and exist now in the Texas Code of Criminal Procedure Art. 38.22.


                                          9
Art. 38.22 (3)(a) state in part that" no oral or sign language statement of an

accused made as a result of custodial interrogation shall be admissible against the

accused in a criminal proceeding unless: prior to the statement but during the

recording the accused is given the warning in Subsection (a) of Section 2 above

and the accused knowingly, intelligently, and voluntarily waives any rights set out

in the warning."


       The Court of Criminal Appeals has stated,

    "Article 38.22 of the Code of Criminal Procedure establishes procedural
safeguards for securing the privilege against self-incrimination. CODE CRIM.
PROC. ANN. art. 38.22. Among its requirements, it provides that no oral statement
of an accused made as a result of custodial interrogation shall be admissible against
the accused in a criminal proceeding unless (J) the statement was recorded and (2)
prior to the statement but during the recording, the accused was warned of his
rights and knowingly, intelligently, and voluntarily waived those rights. CODE
CRIM. PROC. ANN. art. 38.22, § 3. The warning must inform a defendant of the
fo llowing rights:

( l) He has the right to remain silent and not make any statement at all and that any
statement he makes may be used 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; and

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

    Tex. Code Crim. Pro. art. 38.22, § 2. The statute contains two distinct
elements pertaining to a statement's admissibility: the defendant's receipt of the


                                          10
prescribed warning and his waiver of the rights set out in the warning." Joseph v.
State, 309 S. W.3d 20(Tex. Crim. App.- 2010).

       The Joseph Court also stated:

"The State has the burden of showing that a defendant knowingly, intelligently,
and voluntarily waived his lvliranda rights. See Miranda, 384 U.S. at 444, 475 , 86
S.Ct. 1602; Hill v. State, 429 S.W.2d 481 , 486 (Tex.Crim.App.1968). The State
must prove waiver by a preponderance of the evidence. Colorado v. Connelly, 4 79
U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)."

      In addition, Joseph also pointed out that the waiver need not be explicit, but

that the waiver must be knowingly, intelligently and voluntarily waived using a

totality of the circumstances standard.


      The concunence in Joseph, stated:

       "Merely asking the accused whether he understood his rights does not satisty
the duties of an interrogating officer or make any statement the accused might then
make admissible . .Miranda requires the interrogating officer to go further and make
sure that the accused, knowing his rights, voluntarily relinquishes them /~

     However, "an express statement is not invariably necessary to support a
finding that the defendant waived either the right to remain silent or the right to
counsel. uz Under some circumstances, if a suspect has been fully warned of his
rights and has indicated that he understands those rights, a course of conduct
consistent with waiver "may" support the conclusion that the suspect has waived
his Miranda rights. ~ However, the courts must presume that a defendant did not
waive his rights; the prosecution's burden is great; but at least in some cases waiver
can be clearly inferred from the actions and words of the person intenogated.2

     That is, the deck is stacked against the finding of an implicit waiver, but the
State may, at least in some cases, show that a waiver can be clearly inferred from
the suspect's words and actions after having been warned."



                                          11
       It is quite clear that the preferred method of obtaining an express waiver is

through an express waiver of Art. 38.22 rights.


      The State of Texas failed to prove that the defendant waived his Art. 38.22

rights in any way. The evidence shows that the defendant was not experienced in

any way with the criminal justice system and its nuances. Further, there is

insufficient proof that the defendant even understood his rights. The comments of

the defendant, as recorded, provides clear evidence that he did not waive his Art.

38.22 rights. He hemmed and hawed all through the advisement of rights. Further,

he was not ever asked whether he wanted to waive his rights. Therefore, no

explicit waiver occurred.


      Having not waived his rights, either explicitly nor impliedly, the statement

of the defendant cannot be entered into evidence, and should not have been

considered by the trial court.


      Issue No. 2- The trial court erred by denying appellant's motion for

continuance to locate a witness in that the prosecutor failed to update the contact

information in the state's witness list and provide exculpatory evidence prior to

trial. Appellant sought a continuance in order to locate and serve a subpoena on




                                         12
William "Brody" West after learning that he could not be found at the address

provided by the prosecution and relied upon by the defense.

       Tex. Code Crim. Pro. Article 29.03 provides that a criminal action may be

continued on motion by either party, upon sufficient cause shown in the motion.

Tex. Code Crim. Pro., Article 29.06(6) states that the sufficiency of the motion

shall be addressed to the sound discretion of the trial court, and shall not be granted

as a matter of right. The trial court' s ruling on a motion for continuance is

reviewed under an abuse of discretion standard. Janecka v. State, 937 S.W.2d 456,

468 (Tex.Crim.App. 1996), cert. denied, 118 S.Ct. 86,139 L.Ed.2d 43 (1997);

Heiselbetz v. State, 906 S.W.2d 500 (Tex.Crim.App. 1995); Cooks v. State, 844

S.W.2d 697, 725 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 927, 113 S.Ct.

3048, 125 L.Ed.2d 732 (1993). To establish an abuse of discretion the defendant

must show that he was actually prejudiced by the denial of his motion. Heiselbetz ,

906 S.W.2d at 511. "Where denial of a continuance has resulted in demonstrated

prejudice, we have not hesitated to declare an abuse of discretion. Rosales v. State,

841 S.W.2d 368, 372 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 949, 114

S.Ct. 393, 126 L.Ed.2d 341 (1993)." Janecka, supra. With respect to the prompt

and efficient administration of justice versus the rights of the defendant to a fair

trial: [T]he United State's Supreme Court has observed that the question of

whether or not to grant a continuance: "is traditionally within the discretion of the


                                          13
trial judge, and it is not every denial of a request for more time that violates due

process even if the party fails to offer evidence or is compelled to defend without

counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a

justifiable request for delay can render the right to defend with counsel an empty

formality. There are no mechanical tests for deciding when a denial of a

continuance is so arbitrary as to violate due process. The answer must be found in

the circumstances present in every case, particularly the reasons presented to the

trial judge at the time the request is denied. [citations omitted]." Rosales, supra at

374, quoting Ungar v. Sarafite, 376 U.S. 575 , at 589, 84 S.Ct. 841 , at 849- 850, 11

L.Ed.2d 921, at 931 (1964) (emphasis added). The State is required to disclose

exculpatory evidence regardless of whether counsel requests it. Kyles, supra. Had

this information been available prior to trial, counsel would have been able to

better investigate these suspects, develop evidence and present it as part of his

defense. Had he been able to do so, he would have been better prepared to present

evidence that William "Brody" West was under FBI investigation, that William

"Brody" West had contact with the confidential informant, the relationship with

West had with the informant and other party at the scene, and the reason for

release of the other individual located at the residence that was searched.

Moreover, in excess of three years had elapsed from the time of the offense until

the case went to trial. Appellant knew practically nothing of William "Brody"


                                          14
West's background. Ifhe had known of West' s federal charges to trial, he may

have been able to confront West regarding whether his malfeasance may also have

affected Appellant's case. For this reason, the trial court erred in refusing to grant

him a continuance.


      Issue No. 3- In his fourth point of error, Appellant argues that the state

failed to provide evidence which was mitigating or exculpatory in violation of his

due process rights provided by the Constitution of the United States.

      In this case the State filed a witness list containing the name of William

"Brody" West and listing his address as "Marshall Police Department, Marshall,

Texas" and provided the non-emergency number of the Marshall Police

Department. (CR, p. 65). The elected district attorney, when referring to the legal

status of West stated that he knew that Mr. West was being prosecuted in the

federal system, and attempted to cast that knowledge upon the defense (RR. Vol. 2,

pp. 27-28). Lieutenant Len Ames testified that William "Brody" West was

involved in the investigation, that West worked as a narcotics investigator, that

West was working with the informant in this case, that he believed that it was a

federal investigation, and that West had contact with this informant on more than a

few occasions. (RR Vol. 2, pp. 92-96). Appellant requested the identity of the

informant and that information was denied. ( RR Vol 2. Pp.99-100).




                                         15
      Joe Bounds, now an investigator with the Harrison County District

Attorney's Office, testified that he understood that West was under investigation

(RR Vol. 2, p.175). Bounds also stated he knew of the investigation during the

entirety of his employment at the district attorney's office, and that it was widely

known in that office that West was under investigation. (RR Vol.2, pp. 174-176).

Bounds also could not rule out that the FBI investigation did not predate the

offense alleged in this case. (RR Vol. 2, pp. 177).

      A prosecutor has an affirmative duty to disclose, prior to trial, all evidence

favorable to the accused. See Kyles v. Whitley, 514 U.S . 419, 115 S.Ct. 1555, 131

L.Ed.2d 490 (1995); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49

L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215

( 1963 ). If the withheld evidence is favorable to the accused and is material, the

defendant is entitled to a new trial. Id. The Court of Criminal Appeals, consistent

with Supreme Court precedent, has held a three-part test applies to a claim that

undisclosed evidence violates a defendant' s right to due process. Such a violation

occurs when a prosecutor: 1) fails to disclose evidence; 2) which is favorable to the

accused; 3) that creates a probability sufficient to undermine confidence in the

outcome of the proceeding. Ex Parte Mitchell, 853 S.W.2d 1, 4 (Tex.Crim.App.

1993); Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App. 1992).

      Impeachment evidence is favorable evidence. Mitchell, supra at 4; Thomas,


                                          16
supra at 404. The Supreme Court has held "that regardless of request, favorable

evidence is material, and constitutional error results from its suppression by the

government, ' if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different. '"

Kyles v. Whitley, 514 U.S. at 433-434, 115 S.Ct. at 1565, quoting United States v.

Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (opinion ofBlackmun, J.) ; id. at

685, 105 S.Ct. at 3385 (White, J. , concurring in part and concurring in judgment)

87 L.Ed.2d 481 (1985).

       In Kyles , the Supreme Court discussed and emphasized four aspects of

materiality under Bagley. First, a showing of materiality does not require the

defendant to demonstrate that disclosure of the suppressed evidence would have

resulted ultimately in his acquittal, whether based on the presence of reasonable

doubt or acceptance of an explanation for the crime that does not inculpate the

defendant. Kyles , 514 U.S. at 434-435 , S.Ct. at 1565-66. "The question is not

whether the defendant would more likely than not have 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. "' Id. , S.Ct. at

1566, quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

                                          17
      Secondly, Bagley materiality is not a sufficiency of the evidence test. "One

does not show a Brady violation by demonstrating that some of the inculpatory

evidence should have been excluded, but by showing that the favorable evidence

could reasonably be taken to put the whole case in such a different light as to

undermine confidence in the verdict." Kyles , U.S. at 435, S.Ct. at 1566.


      Thirdly, once the reviewing court applying Bagley has found constitutional

error there is no need for further harmless-error review. "Assuming arguendo that a

harmless error enquiry were to apply, a Bagley error could not be treated as

harmless, since ' a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different,' ... necessarily

entails the conclusion that the suppression must have had 'substantial and injurious

effect or influence in determining the jury's verdict," ' Kyles , U.S. at 435, S.Ct. at

1566 (internal citations omitted).

      Finally, the Court stressed as the fourth aspect of Bagley materiality that its

definition in terms of suppressed evidence is considered collectively, not item-by-

item, viz: While the definition of Bagley materiality in terms of the cumulative

effect of suppression must accordingly be seen as leaving the government with a

degree of discretion, it must also be understood as imposing a corresponding

burden. On the one side, showing that the prosecution knew of an item of favorable

evidence unknown to the defense does not amount to a Brady violation, without

                                           18
more. But the prosecution, which alone can know what is undisclosed, must be

assigned the consequent responsibility to gauge the likely net effect of all such

evidence and make disclosure when the point of "reasonable probability" is

reached. This in tum means that the individual prosecutor has a duty to learn of

any favorable evidence known to the others acting on the government's behalf in

the case, including the police. But whether the prosecutor succeeds or fails in

meeting this obligation (whether, that is, a failure to disclose is in good faith or bad

faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197), the prosecution's

responsibility for failing to disclose known, favorable evidence rising to a material

level of importance is inescapable. Kyles, U.S. at 437-438, S.Ct. at 1567.

         By failing to provide Appellant with information regarding the address of

William "Brody" West, the nature of the federal investigation into the conduct of

William "Brody" West, the relationship that West may have had with the

confidential informant in this case, it is clear that the State failed in its duty to

provide such evidence to Appellant. Such failure resulted in the denial of a fair

trial.


                                        PRAYER

         Wherefore, premises considered, Appellant prays that this Honorable Court

of Appeals, pursuant to Texas R. App. Pro. 43.2, reverse the finding of guilty by

the trial court and render a judgment of acquittal.

                                            19
Respectfully Submitted,



ROBERT L. COLE, JR.
Attorney for Appellant
SBOT; 0454 7800
409 N. Fredonia, Suite 101
Longview, TX 75601
903-236-6288 Phone
903-236-5441 Fax
rcolejd(LV,gmail.com e-mail


                       CERTIFICATE OF COMPLIANCE
      I hereby certify that this computer generated document contains 4,253 words

as limited by Texas Rule of Appellate Procedure Rule 9.4.




                                            ROBERT L. CO E, JR.
                                            Counsel for Ap ellant




                                       20
                          CERTIFICATE OF SERVICE

      I hereby certify that on this the 21st day of October 2015, a copy of the

foregoing has been delivered via fax transmission to Han-ison County District

Attorney's Office, 903-938-3912, with attention to Shawn Connally, Attorney for

Appellee.




                                        21
                                APPENDIX

Information United States District Court, Eastern District of Texas, Marshall
                                  Division

                           Cause No. 2:14-CR-5

                 United States of America v. William West

                              (3 pages follow)




                                    22
 Case 2:14-cr-00005-JRG-RSP Document 1 Filed 08/05/14 Page 1of3 PagelD #: 1




                            UNITED STATES DISTRICT COURT
                             EASTERN DISTRICT OF TEXAS
                                 MARSHALL DIVISION

UNITED STATES OF AMERICA                      §
                                              §
V.                                            §   NO. 2:14-CR-5
                                              §   JUDGE: Gilstrap/Payne
WILLIAM WEST                                  §

                                     INFORMATION

THE UNITED STATES ATTORNEY CHARGES:

                                        Count One

                                                  Violation: 18 U.S.C. § 4
                                                  (Misprision of a Felony)

         On or about March, 2012 in Harrison County, Texas, in the Eastern District of

Texas, the Defendant, William West (West), having knowledge of the actual commission

of a felony cognizable by a court of the United States, to wit: Possession with Intent to

Distribute Cocaine, in violation of 21U.S.C.§841(a)(l), did conceal said felony by

sending a text message to an individual who was then and there in possession of cocaine

with the intent to distribute, to "shut it down" when West knew that law enforcement

officers were actively engaged in an effort to collect evidence against said individual, in

order to facilitate the commission of said felony, and did not as soon as possible make

known the same to some judge or other person in civil authority under the United States, in

violation of 18 U.S.C. § 4.




Information - Page 1 of 3
 Case 2:14-cr-00005-JRG-RSP Document 1 Filed 08/05/14 Page 2 of 3 PagelD #: 2




JOHN M. BALES
UNITED STATES ATTORNEY



                                                   Date 8/5/2014




Information - Page 2 of 3
 Case 2:14-cr-00005-JRG-RSP Document 1 Filed 08/05/14 Page 3 of 3 PagelD #: 3




                            IN THE UNITED STATES DISTRICT COURT
                             FOR THE EASTERN DISTRICT OF TEXAS
                                     MARSHALL DIVISION

UNITED STATES OF AMERICA                         §
                                                 §
v.                                               §   NO. 2:14-CR-5
                                                 §
WILLIAM WEST                                     §


                                    NOTICE OF PENAL TY

                                            Count One

Violation:                       18 U.S.C. § 4 (Misprision of a Felony)

Penalty:                        A fine of not more than $250,000.00; imprisonment for not
                                more than three (3) years; or both. A term of supervised
                                release of not more than one (1) year.

Special Assessment:              $100.00




Information - Page 3 of 3
