





 



IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1012-03


JACKIE RUSSELL KEETER, Appellant

v.

 
THE STATE OF TEXAS




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

HAMILTON  COUNTY



 Keller, P.J., filed a concurring opinion joined by Cochran, J.


 I join the Court's opinion but write separately to respond to some of the comments in the
dissenting opinion.  The dissent claims that a "first-year law student" would recognize that a Brady
claim is presented by the statement, "Evidence establishing the defendant's innocence was withheld
by a material prosecution witness."  But Brady claims apply only to agents of the government, (1) and
the complaining witness in this case was not a government agent.  That distinction is the essence of
the difference between suppression-of-exculpatory-evidence claims under Brady v. Maryland (2) and
freestanding actual innocence claims due to the malfeasance of a  witness under Ex parte Elizondo. (3) 
	The dissent next criticizes the Court for noting that the trial court did not mention Brady
when it overruled the motion for new trial.  The dissent claims that the Court's remarks are
"disingenuous" because the Texas Rule of Appellate Procedure 21.8(b) does not permit the trial
court to discuss or comment on the evidence. (4)  But whether or not the trial court's comments were
proper, those comments do indicate that the trial court was concerned with a newly discovered
evidence claim rather than a Brady claim.  Moreover, the rule prohibits commenting on the
"evidence" but does not prohibit a trial court from specifying what claims it ruled upon.  So there
is no impropriety in this Court looking to the trial court's comments to try to ascertain whether the
claim appellant now urges was before the trial court.
	   The dissent further contends that "there is no doubt the parties and the trial judge fully
understood that a Brady claim was being litigated" because the "State filed a letter in the appellate
court in which specific references to Brady were made" (emphasis mine).  But the presence of a
letter in the appellate court does not show that the trial court was on notice that a Brady claim was
being urged.  Since appellant raised a Brady claim in the court of appeals, a response to that claim
would be expected.
	The dissent says that the failure to cite Brady in the written motion for new trial or say the
words "Brady v. Maryland" at the hearing should not override the fact that a Brady claim was
apparent from the context and vigorously litigated by the parties.  I agree that no talismanic formula
was required.  Appellant could have said the State had suppressed exculpatory evidence, or
something similar.  He never did.  The dissent's conclusion that the Brady claim was "vigorously
litigated" is without foundation.  A newly discovered evidence claim was vigorously litigated, but
there is no evidence in the record that a Brady claim was litigated at all. 

						Keller, Presiding Judge
Date filed: April 6, 2005
Publish




1.   Stickler v. Greene, 527 U.S. 263, 280-281 (1999); see also Schlup v. Delo, 513 U.S.
298, 313-314 (discussing difference between freestanding innocence claims and procedural
constitutional violations such as that found in Brady v. Maryland).
2.   373 U.S. 83 (1963).
3.   947 S.W.2d 202 (Tex. Crim. App. 1996).
4.   Rule 21.8(b) provides in relevant part: "In ruling on a motion for new trial, the court
must not summarize, discuss, or comment on evidence."		
