       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-01-00457-CR




                                       Samuel Ramirez, Appellant

                                                       v.

                                      The State of Texas, Appellee


         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
               NO. 0992066, HONORABLE JON N. WISSER, JUDGE PRESIDING




                 Appellant Samuel Ramirez was convicted by a jury of official oppression. Tex. Pen. Code

Ann. ' 39.03 (West 1994).1 The trial court assessed his punishment at three months in the county jail.


                                               Points of Error

                 Appellant advances three points of error. First, appellant urges that the trial court erred in

permitting a clinical social worker to testify as an expert witness outside of her field of expertise and to give


        1
          The indictment alleged official oppression by: (1) mistreatment of the complainant; and (2) sexual
harassment of the complainant. The trial court submitted both counts to the jury in the disjunctive. The jury
returned a general verdict finding appellant guilty Aas alleged within the indictment.@ When different theories
of the offense are submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence
supports one of the theories. See Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992);
Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex. Crim. App. 1992); Skillern v. State, 890 S.W.2d
849, 877 (Tex. App.CAustin 1994, pet. ref=d).
opinion evidence regarding the complainant, based on a review by the witness of a report by a non-testifying

Apsychologist,@ whose own qualifications were never established. Appellant claims his rights under the Sixth

and Fourteenth Amendment to the United States Constitution were violated.

                 Second, appellant asserts the suppression of evidence by the prosecutors. He contends

that the trial court erred in overruling the motion for new trial when it was established that the prosecutors

failed to disclose exculpatory and impeaching evidence that the complainant had, prior to trial, filed a civil

lawsuit against the City of Austin and appellant arising out of the same events giving rise to the instant

indictment; and that the State knowingly used false evidence from the complainant in this regard tainting the

conviction obtained. Appellant claims that he was deprived of due process of law, a fair trial, and the

effective assistance of counsel. Appellant complains that the suppression of evidence occurred despite the

granting of his pretrial Brady v. Maryland, 373 U.S. 683 (1963), motion for the State to disclose

exculpatory evidence.

                 Third, appellant contends that the trial court erred in not granting a mistrial motion when the

prosecution twice failed to comply with the court=s rulings on motions in limine resulting in the introduction of

inadmissable, prejudicial, and harmful evidence.

                 We shall sustain the second point of error and reverse the conviction on the basis of the

suppression of evidence by the prosecution.


                                                     Facts

                 Appellant does not challenge the legal or factual sufficiency of the evidence, but the facts set

the stage for our disposition on the issue of suppression of evidence advanced in the second point of error.


                                                       2
                 The instant case has been a difficult one for both the State and defense, not only because a

police officer was involved, but because the case turned, in large measure, on the credibility of the

complainant who had a criminal record and a less than desirable background. The credibility of the

complainant, of course, was an issue for the jury. The State did have a test showing that the semen saved

by the complainant from an oral sex act contained a mixture of the DNA of appellant and complainant.

Appellant contends that the sexual act was consensual; that the complainant whose background included

drug addiction had, with an ulterior motive, lured him back to the house where the act occurred; and that

when she called the police after the act, she also called an attorney and lied about this latter fact to the first

police officer on the scene.

                 On the morning of March 13, 1999, at about 11:52 a.m., Austin Police Officer Ivey Yancy

responded to a report of a disturbance at 6708 Millrace Street. There he found that two women had been

fighting over a piece of meat. One of the women was D.C., the complainant in the instant case. The other

woman was a friend of D.C.=s aunt who lived at the address. Neither woman wanted to file charges, so to

diffuse the situation, Officer Yancy agreed to take D.C. to another location. D.C.=s aunt told the officer that

D.C. was a crack cocaine addict.

                 Officer Yancy first took D.C. to an address on Greenwood Street, but no one was home.

At D.C.=s instructions, Yancy took her to 2705 Hoeke Lane, number 100, in a trailer park. D.C. told

Yancy that she had lost her key, that her boyfriend or husband frequently changed the code on the burglar

alarm, and that she might set off the alarm in entering the house. Yancy gave her his Abusiness card.@ Later,

he heard police radio reports of a burglar alarm at the address and notified the responding officers that he

had just delivered D.C. to her home.

                                                        3
                Austin Police Officer James Cottingham testified as a State=s witness. He was on patrol

about 12:40 p.m. on March 13, 1999, when he received a radio dispatch about a burglar alarm at 2705

Hoeke Street, and proceeded there. As he arrived, he received a radio message from Officer Yancy that

he had just dropped off a woman at that address who had earlier been involved in an assault. Cottingham

said that about the same time appellant, another uniformed police officer, arrived separately in his own

vehicle. Appellant knocked on the door. D.C. opened the door, turned, and sat on a couch. The officers

entered the house. When asked by appellant how she Agot there,@ D.C. responded that Officer Yancy had

brought her there and displayed Yancy=s card. According to Cottingham, they did not ask for identification

or examine the alarm system because Yancy=s report had been confirmed. Cottingham observed that the

Playboy channel on the television set was displaying a topless woman. Appellant asked D.C. why she was

watching it, and she replied that she liked to watch it so she would be ready for her truck driver boyfriend

when he got home, that she Alearned new stuff from watching the program.@ Cottingham observed that the

television began advertising movies, and appellant inquired when the movies started. D.C. responded that

they started at 3:00 p.m., and appellant stated, AI think I=ll come back at 3:00 p.m.@ D.C. Alaughingly@ said,

AOkay, you can come back at 3:00, but your wife might get mad at you because you might . . . you might

learn something new.@

                Cottingham thought D.C.=s conduct was inappropriate, that the conversation was Ajoking,@

but he felt there was Aheavy duty flirting between D.C. and appellant.@ Cottingham tried to divert the

conversation to the earlier assault, but it soon reverted to the Playboy television channel and the means and

costs of accessing that channel. At this time, the television set was showing previews of movies displaying

sexually oriented material. Cottingham again changed the subject to the stained-glass house windows, but

                                                      4
soon D.C. again invited appellant to return to watch the movies. Cottingham decided to leave, and

appellant caught up with him before they reached their vehicles.

                Brenda Brown lived at 2705 Hoeke Lane, number 96, across from number 100 where

D.C. stayed at various times. Brown arrived home from work about 3:00 p.m. on March 13, 1999, and

observed a police car parked in front of number 100. Approximately fifteen minutes later, D.C. came to

Brown=s house and stated that she had been sexually assaulted by a police officer. Brown urged D.C. to

call the police, which she did. When Detective Beth Young arrived, D.C. was still using Brown=s telephone,

and Brown told Young that D.C. was talking to the police. D.C. later admitted to Young and Brown that

she had, in fact, been talking to an attorney.

                Brown related that in the past D.C. had borrowed a screwdriver in order to get into trailer

number 100; that D.C. referred to the man she lived with as her Aold man,@ but Brown characterized the

relationship as Astormy@; that when Brown saw police cars in the past at the trailer house, D.C. would tell

Brown that her Aold man@ was trying to get her to leave.

                When D.C. testified, the State, early on and up front, decided to get her record and

background before the jury. The thirty-two-year-old D.C. had four children, all with different fathers. The

first child was born when she was fifteen years of age and still in high school. Three of her children were

living with her mother, and the youngest had been adopted.

                At the time of the trial (March 2001), D.C. was in the Williamson County jail for non-

support of her children and had a pending possession of cocaine indictment in Travis County. D.C.

admitted that she became addicted to powdered cocaine while in high school. In 1992, D.C. was

convicted of burglary and received a five-year prison sentence, and in 1996, she was convicted of delivery

                                                    5
of a controlled substance. D.C. also admitted several misdemeanor convictions including a shoplifting

conviction.

                D.C. stated that on March 13, 1999, she was living with O.J. Williams at 2705 Hoeke

Lane, number 100; that they were engaged but not married; that their relationship was an Aup and down

one@; that on March 13, 1999, she was four or five months pregnant; that earlier O.J. began Amessing

around@ and she decided to Amess around@ and got pregnant by another man; that this fact caused

arguments with O.J. followed by physical violence; and that O.J. called the police Aall the time@ and would

tell them: AI want her out.@ D.C. related that they then would Aget back together.@

                On March 13, 1999, D.C., who had been away for several weeks, was at her aunt=s house

and got involved in a fight with another woman. Officer Yancy took her to the Hoeke Street address.

Thereafter, she opened O.J.=s door with a Lone Star credit card. When the alarm went off, she used a A1,

2, 3, 4@ code to turn it off but the alarm came back on. D.C. pulled the coil and disarmed it. D.C. then

turned on the television set and flipped to the Playboy channel. Two uniformed police officers came to the

door and inquired about the alarm, suggesting she had not timely punched in the code. The officers entered

the house and began looking at the television. D.C. identified appellant as one of the officers. Appellant

asked D.C. about the cost of the Playboy channel, which she did not know. When asked why she watched

that Astuff,@ D.C. replied that she did it to learn new ways and that she and her fiancé watched it together.

D.C. described appellant as being Ahorny@ and Aexcited.@ D.C. asked appellant if he was married. He

answered, Ano,@ but added that he had a girlfriend who did not Ado all this.@ D.C. described the

conversation as a friendly, joking, and laughing one. When D.C. mentioned that the movies came on at 3:00

p.m., appellant said that he would be back at that time and Awe laughed it off.@ D.C. recalled that as

                                                     6
appellant left, he remarked, AI=m getting horny already.@ D.C. thought that appellant was joking about

coming back and said, AYour girlfriend might find out that, you know . . . learned new ways.@ D.C. said she

was Ajoking around@ and did not have the impression that anyone was flirting with her.

                D.C. testified that after the officers left, she retreated to the couch with a cover and a pillow

and fell asleep. She was awakened by a knock at the door. Appellant had returned. He said that he came

to help with the alarm, but it had not gone off again. Appellant entered the house, took a seat, and asked

about the Playboy channel. D.C. explained that she had been asleep. D.C. became concerned that O.J.

would come home and find her with the officer. She told appellant that he had to leave. When he didn=t,

D.C. told him that she was going across the street to call O.J. As she started to leave, appellant grabbed

her by the arm and pulled her into his lap and began feeling her breasts and moving underneath her.

Appellant asked if she had been with a police officer before. D.C. told him that she had been assaulted by

a Taylor Police Officer, thinking that might make appellant quit what he was doing. D.C. did not try to run

because of her pregnancy. She went to the couch and laid down telling appellant that she was sleepy. D.C.

related that she began rubbing her stomach and her leg under the cover, a nervous habit due to her

pregnancy. Appellant asked what she was doing, and D.C. told him that she was Anot feeling on herself.@

                D.C. testified that the armed appellant approached her with his penis out of his pants, held

her down on the couch, and forced her to commit an act of oral sex. D.C. testified she was Atired of all this

stuff@ and thought that no one would believe her. When the act was completed, she immediately went to the

bathroom and spit what was in her mouth into a plastic bag. When she came out of the bathroom, appellant

received a report on his shoulder radio about an assault on another police officer and left the house, telling



                                                      7
D.C. that he would be in touch with her. D.C. denied that she was on drugs that day, although she had

been taking drugs off and on during her pregnancy.

                D.C. went to Brenda Brown=s house and reported the sexual assault. She telephoned a

hospital, the police, 911, and an attorney. When Detective Beth Young arrived, D.C. thought Young was

rude in telling her to hang up the telephone or that Young would leave. D.C. told Young what had

happened and gave her the plastic bag. O.J. arrived home about this time. Young told O.J. what had

occurred because D.C. was too scared to tell him. O.J. was upset about the condition of his alarm system,

so D.C. suggested that the police had disabled the alarm. While Young talked to O.J. separately, other

officers arrived on the scene and questioned whether she lived there and wanted to charge her with

burglary. In front of the police officers, O.J. accused her of burglary, told her that she deserved what

happened, gave her a criminal trespass warning, and told her not to come back. D.C. reported that a week

later, O.J. was calling her mother and aunt trying to get her to come back. Apparently, D.C. then stayed for

two months with Kenneth Hill, a cousin to Charlie Hill, the father of her unborn child. When Charlie Hill

went to state jail, D.C. reported that her Anext boyfriend@ was Michael White. She went back and forth

between White and O.J., but the baby was born while she was at the Hoeke Lane address.

                Still on direct examination, the prosecutor inquired about Danny Gratten, a Taylor Police

Officer, whom D.C. testified sexually assaulted her in 1994. She said that Gratten kept trying to connect

her with a murder, but that she took a lie detector test and was cleared; that Gratten was fired as a police

officer because of numerous complaints, but he was never prosecuted for assaulting her.

                It was during the direct examination of D.C. that appellant claims the suppression of

evidence occurred which we will discuss later. On cross-examination, appellant=s counsel reviewed with


                                                     8
D.C. her criminal record, pending charges, and her children and their fathers. Counsel established that D.C.

had lied to the grand jury about O.J. Williams being the father of her last born child; that her grand jury

testimony was unlike her trial testimony concerning her conversation with appellant and Cunningham when

they arrived at the trailer house; and that her sworn statement to an Officer Fleming on March 16, 1999, in

which she stated she reported the Gratten assault on her the morning after it occurred in May 1994, was

inconsistent with the fact that in truth she did not report it until fifteen months later, and only then when an

investigator talked to her about Gratten while she was in jail.

                 Karen Sculice, a DNA analyst with the Department of Public Safety, testified that she tested

mouth swabs from appellant and D.C. and found the contents of the plastic bag delivered to her were a

mixture of the DNA of appellant and D.C. The contents of the bag upon analysis showed seminal fluid

without the presence of spermatozoa.

                 Janesta Sturrup, a clinical social worker in private practice, testified for the State. Her

testimony as an expert is the subject matter of the first point of error and was admitted over numerous

objections. She testified that D.C. was suffering from post-traumatic stress syndrome at the time of the

incident in question due to her earlier experience with Danny Gratten, another police officer. Sturrup stated

that during the incident, D.C.=s Aself separated from body,@ and that when D.C. pulled the cover over

herself she was Ain flight,@ an act of disappearing. Sturrup added: AIn this case, very creatively, but

traumatically, Mrs. C. saved the semen in her mouth.@

                 The defense called Mary Bartlett, a retired Taylor Police Lieutenant, who testified that she

had known D.C. since D.C. was in junior high school and that D.C.=s reputation for being a peaceable and

law-abiding citizen and for truthfulness was bad.


                                                       9
                Detective Beth Young, a defense witness, was the police officer who responded to D.C.=s

call from the Brown home on March 13, 1999. Young found D.C. on the telephone at the Brown home,

and she would not hang up. Young saw the yellow pages of the telephone directory opened under

Aattorneys.@ D.C. was talking softly, and Young heard her ask if Ashe should trust her, talk to her.@ When

Young threatened to leave, D.C. finally hung up. To Young, D.C., at the time, did not appear upset, in

shock or fearful. D.C. did not appear to have any bruises on her arms nor did she display any. D.C.

became upset after Young began to talk separately with O.J. Williams who had arrived home and stated

that D.C. Awasn=t supposed to be there@ and Ashe probably wanted it that way.@ D.C. began to shout and

pound on the door to the house where Young was talking with Williams, demanding her evidence, and

wanting Young to focus on her. Detective Young, concerned for her safety, called for other officers who

soon arrived. Later, Young and Officer Kresta interviewed D.C. at the police station, and a videotape was

made.


                                       Evidence of Suppression

                With these facts as a backdrop, we turn to the record relied upon to reflect the claimed

suppression of evidence. During the direct examination of D.C., she was asked generally what happened

when she went to Brenda Brown=s house after the incident in question. In the course of a long narrative-

type answer, D.C. stated:


        I called APD. Then I called the 911 and then I had called like an attorney, but I was just
        asking him what should I do. I didn=t know who to trust, you know. But it wasn=t no
        attorney in no way where I=m looking for anything out of it, you know. I=m just looking for
        justice out of this, I=m not worrying about no money or nothing.


                                                    10
        Q: All right. So you were just trying to get some advice.

        A: Yes, I was just trying to get some advice.


                Subsequently, still on direct examination, the prosecutor elicited from D.C. that at Asome

point@ she contacted Gary Bledsoe, a civil attorney; that Captain White, a retired police officer, Atracked@

her and gave her a list of attorneys from which list she selected Bledsoe. The record then reflects:


        Q: Okay. Did you contact Gary Bledsoe to try to get money or anything like that?

        A: No, I=m not worried about money. I just want justice out of the whole case.


                At the hearing on the motion for new trial, attorney Gary Bledsoe testified that D.C. had

signed a contigency-fee contract with him in June 1999 authorizing him to bring a civil lawsuit seeking

damages based on the events underlying the alleged criminal offense; that he did not file the civil lawsuit

against the City of Austin and appellant until March 13, 2001, two years after the offense and thirteen days

before the instant jury trial; that a private process server was employed; that the City of Austin was served

with citation on April 2, 2001, the day the jury returned its verdict; and that appellant was not served until

April 13, 2001. Attorney Bledsoe did not know why the process server did not serve appellant during trial

except perhaps not to disrupt the trial. Bledsoe acknowledged that he did not inform D.C. of the filing of

the civil suit as she was in the Williamson County jail at the time. He notified her only after the trial.

Bledsoe, however, testified that prior to trial he informed the particular prosecutors in the criminal

case that he had filed the civil lawsuit or intended to do so shortly thereafter. The State does not

dispute this testimony. The State elicited the complained-of testimony and allowed it to remain uncorrected



                                                     11
despite the granting of appellant=s Brady motion. It is clear that prior to the conclusion of the guilt/innocence

stage of the trial that Bledsoe did not notify appellant or his counsel of the filing of the civil lawsuit.


                                                  Discussion

                  Appellant relies both upon the Brady v. Maryland, 373 U.S. 83, 87 (1963),2 line of cases

and the line of cases represented by Mooney v. Holohan, 294 U.S. 103, 112-13 (1935) (knowing use of

false testimony violates federal requirement of due process and denies accused fair trial).

                  In Giglio v. United States, 405 U.S. 150, 153 (1972), the Court acknowledged that since

Mooney, it has been clear that deliberate deception of a court and jurors by the presentation of known false


        2
             In Brady, the United States Supreme Court stated:

             We now hold 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.

Id. at 87.

          In Strickler v. Greene, 527 U.S. 263, 280-81 (1999), the Supreme Court discussed briefly
some of the changes in the Brady rule since its adoption. The Court stated:

             We have since held that the duty to disclose such evidence is applicable even though
             there has been no request by the accused, United States v Agurs, 427 U.S. 97, 107,
             (1976), and that the duty encompasses impeachment evidence as well as exculpatory
             evidence, United States v Bagley, 473 U.S. 667, (1985). Such evidence is material Aif
             there is a reasonable probability that, had the evidence been disclosed to the defense,
             the result of the proceeding would have been different.@ Id. at 682, 87 L Ed 2d 481,
             105 S Ct 3375; see also Kyles v. Whitley, 514 U.S. 419, 433-434, (1995).
             Moreover, the rule encompasses evidence Aknown only to police investigators and not
             to the prosecutor.@ Id., at 438. In order to comply with Brady, therefore, Athe
             individual prosecutor has a duty to learn of any favorable evidence known to the others
             acting on the government=s behalf in this case, including the police.@ Kyle, 514 U.S. at
             437.


                                                       12
evidence is incompatible with Athe rudimentary demands of justice.@ See Pyle v. Kansas, 317 U.S. 214,

216 (1942). And in Napue v. Illinois, 360 U.S. 264 (1959), the Court concluded that the same result

obtains when the prosecution, Aalthough not soliciting false evidence, allows it to go uncorrected when it

appears.@ Id. at 269; see also Giglio, 405 U.S. at 153. When the reliability of a given witness may well be

determinative of the guilt or innocense of an accused, nondisclosure of evidence affecting credibility falls

within the general rule discussed. Giglio, 405 U.S. at 154. This line of cases has sometimes been referred

to as the Mooney-Pyle-Napue line of decisions. See 42 George E. Dix & Robert O. Dawson Texas

Practice: Criminal Practice and Procedure ' 22.51 (2d ed. 2002) (hereinafter Dix); see also generally

Giles v. Maryland, 386 U.S. 66 (1967); Miller v. Pate, 386 U.S. 1 (1967); Alcorta v. Texas, 355 U.S.

28 (1957); Ex parte Castellano, 863 S.W.2d 476 (Tex. Crim. App. 1993); Ex parte Adams, 768

S.W.2d 281, (Tex. Crim. App. 1989); Davis v. State, 831 S.W.2d 426, (Tex. App.CAustin 1992, no

pet.).3

                Although Brady relied upon Mooney, see Kyles v. Whitley, 514 U.S. 419, 432 (1995),

and there have been suggestions that the Mooney line of cases were incorporated in the later Brady rule, the




          3
           Article I, section 19 of the Texas Constitution provides the same protection against false
testimony as the Mooney-Pyle-Napue line of cases. See Ex parte Adams, 768 S.W.2d 281, 293 (Tex.
Crim. App. 1989); 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure ' 22.51 n.4, 5 (2d ed. 2001). Appellant has not raised a state constitutional issue.




                                                    13
two lines of decisions are distinctive. See United States v. Agurs, 427 U.S. 103, 104 (1976). It has been

stated:


          Although Brady v. Maryland and its progeny suggest the due process duty to disclose may
          have superseded and replaced the prohibition against the use of perjured testimony, this is
          not the case. The prohibition against the use of perjured testimony remains available to
          defendants as an alternative to Brady arguments. Mooney contentions are sometimes more
          attractive to defendants because the criterion for determining the materiality of improperly
          used perjured testimony is more lenient than that for determining the materiality of
          improperly suppressed exculpatory evidence under Brady.

          The difference between the two due process rules is not entirely clear. Some situations will
          present viable arguments that both were violated. If a defendant is able to establish both
          that the State knowingly used perjured testimony and that it failed to disclose evidence
          showing the falsity of the testimony, the defendant is entitled to relief if he or she can show
          the testimony used is material under the perjured testimony line of decisions and its more
          relaxed materiality standard.


Dix, ' 22.5 (citations omitted).

                  While appellant relies upon both due process rules, we conclude it is necessary to examine

only the Mooney-Pyle-Napue line of decisions to reach the proper disposition of appellant=s contention.

We review the record to determine if the State Aused@ the testimony, whether the testimony was Afalse,@

whether the testimony was Aknowingly used,@ and if these questions are affirmatively answered, whether

there is a reasonable likelihood that the false testimony could have affected the judgment of the jury.


                                           Was Testimony Used?

                  The Mooney-Pyle-Napue line of cases require that the prosecution have Aused@ certain

testimony, while the Brady line of decisions demands only passive nondisclosure. See Dix, ' 22.52. In the

instant case, the State clearly Aused@ the testimony. First, the State on direct examination clearly permitted

                                                        14
D.C. to testify without correction that she was not looking for money but seeking justice. Second, the

State, still on direct examination,4 directly elicited from D.C. that she had contacted a named lawyer, but

permitted her to expressly deny that she did so Ato get money,@ and to declare again that her interest was

only in justice.


                                  Testimony Must Have Been AFalse@

                   Many cases discussing a Mooney-Pyle-Napue contention refer to the testimony as being

Aperjured testimony@ or as involving Aperjury.@ See, e.g., Pyle, 317 U.S. at 216. While this terminology is

still used, it is sufficient if the testimony is false and misleading to the trier of fact. See Napue, 360 U.S. at

269; Alcorta, 355 U.S. at 32.


        There is no need for a defendant to show the witness knew the testimony was false or
        otherwise harbored a sufficient culpable mental state to render the witness subject to
        prosecution for perjury. Moreover, the Court of Criminal Appeals has made clear that
        whether the rule is violated or not does not depend upon the defendant=s ability to


        4
           The Court of Criminal Appeals, applying the Mooney-Pyle-Napue line of decisions, has found
Ause@ by the State where the testimony was given by a State=s witness on cross-examination by the accused.
 See Duggan v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989); see also Burkhalter v. State, 489
S.W.2d 214, 218 (Tex. Crim. App. 1973); Dix, ' 22.52. It has been said that the Supreme Court in
Alcorta v. Texas, 355 U.S. 28 (1957), extended the Mooney-Pyle-Napue line of decisions to the
Apassive@ use of testimony by the prosecution. See Ex parte Castellano, 863 S.W.2d 476, 480 (Tex.
Crim. App. 1993).




                                                       15
        demonstrate the witness=s specific factual assertions were technically incorrect or Afalse.@ It
        is sufficient if the witness=s testimony gives the trier of fact a false impression.


Dix, ' 22.53.

                 Here, the complainant=s testimony that she was not looking for money and that her contract

with attorney Bledsoe was not Ato get money@ was false and misleading. Bledsoe=s testimony at the hearing

on the motion for new trial made clear that he had a written contract with the complainant to bring a civil

lawsuit for damages against the City of Austin and appellant; that the lawsuit was not filed until two years

after the offense; and that prior to trial he had notified the prosecutors in the criminal case of the

filing of the civil case or its impending filing. When D.C. gave her trial testimony, there was a civil

suit on file. Thus, her testimony was false and misleading. The State contends that D.C. had been in the

Williamson County jail for several weeks before and during the trial, and that Bledsoe acknowledged that he

had not notified D.C. that he had filed the civil lawsuit in accordance with their contract. The State contends

that the complainant had no knowledge that the civil lawsuit had been filed and did not know her testimony

was false. The State, however, knew and took no action.

                 In Burkhalter v. State, 493 S.W.2d 214 (Tex. Crim. App. 1973), the defendant was

charged with being an accomplice to murder. The State=s principal witness, Whitehurst, was indicted for the

murder as a principal. Whitehurst=s attorney told him that his testimony Acould help him,@ but Whitehurst

was unaware of an understanding between his attorneys and the prosecutor that if he testified without

claiming immunity he would not be prosecuted. When asked on cross-examination whether he expected

(because of his testimony) to be free of all criminal charges, he answered in the negative. The trial court

refused to allow the defendant (Burkhalter) to show the understanding with the prosecutor.

                                                      16
                The appellate court, relying heavily upon Giglio and Napue found a due process violation

when the defendant was denied the opportunity to refute the inevitable impression that such testimony had

on the jury. Burkhalter, 493 S.W.2d at 218. The court also stated:


        We fully appreciate the State=s position that there was no false evidence here, since
        Whitehurst did not know that he would not be prosecuted. Even if we assume this
        ignorance, we find that the prosecutor=s silence as to the plan not to prosecute conveyed an
        impression to the jury which the State knew to be false and one which should have been
        corrected.


Id. (emphasis in original); see also Duggan, 778 S.W.2d at 468.

                Even if D.C. did not know at the time of her trial testimony that a civil suit had been filed,

the State knew her testimony was false and misleading and used it. See Burkhalter, 493 S.W.2d at 218.

We reject the State=s apparent contention that appellant was required to show D.C.=s awareness of the

lawsuit before his due process claim could be advanced.


                           State=s Use of Testimony Must be AKnowing@

                Another factor to be considered in applying the Mooney-Pyle-Napue line of decisions is

whether the State made knowing use of false or perjured testimony. Our earlier discussion constitutes an

affirmative answer to this inquiry. Prior to trial, the very prosecutor who conducted the direct examination

of the complainant was personally made aware of the civil lawsuit. There is no dispute on this point. We

are not confronted here with knowledge possessed by a member of the Aprosecution team@ which must be

imputed to the prosecutor actually trying the case. Cf. Castellano, 863 S.W.2d at 485; Ex parte Bradley;

781 S.W.2d 886, 892 n.7. (Tex. Crim. App. 1989).

                                                    17
                                                 Materiality

                 The Mooney-Pyle-Napue due process prohibition against the use of false testimony

contains no explicit requirement that the improperly used testimony be Amaterial.@ Dix, ' 22.55. A violation

of this prohibition demands a conviction be set aside or rendered invalid, but only if there is a reasonable

likelihood that the false testimony could have affected the judgment of the jury. See Agurs, 427 U.S. at

103; Adams, 768 S.W.2d at 292; Granger v. State, 683 S.W.2d 387, 391 (Tex. Crim. App. 1984);

Davis, 831 S.W.2d at 439. AThis is essentially the harmless error standard for constitutional error

embodied in the Texas Rules of Appellate Procedure 44.2(a).@ Dix, ' 22.55; see also Chapman v.

California, 386 U.S. 18, 24 (1967); Castellano, 863 S.W.2d at 485.

                 In the instant case, D.C. was the essential witness linking appellant to the acts of official

oppression alleged in the indictment. Her false testimony was critical in evaluating the witness=s credibility in

view of her extremely questionable background. See Sambrano v. State, 754 S.W.2d 768, 771 (Tex.

App.CSan Antonio 1988, pet. dism=d). When the reliability of a given witness may well be determinative of

guilt or innocence, nondisclosure of evidence affecting credibility falls within the Mooney line of cases.

See Giglio, 405 U.S. at 154; see also Burkhalter, 493 S.W.2d at 218.

                 The jury should have had the opportunity to determine the witness=s credibility with full

knowledge of the false testimony. It is noted that during the jury=s deliberations, it sent a note to the trial

court inquiring whether a verdict should be reached on one witness=s testimony with no corroborating

evidence and indicating the jury was deadlocked at that point. The trial court simply instructed the jury to

continue its deliberations.

                                                      18
                 In a letter notifying counsel of the overruling of the motion for new trial, the trial court noted

its concern Athat some of the conduct of the State was not as professional as it should have been.@ Cf. Tex.

R. App. P. 21(b).

                 Article 2.01 of the Texas Code of Criminal Procedure provides in pertinent part:


        It shall be the primary duty of all prosecuting attorneys, including any special prosecutors,
        not to convict, but to see that justice is done. They shall not suppress facts or secrete
        witnesses capable of establishing the innocence of the accused.


Tex. Code Crim. Proc. Ann. art. 2.01 (West Supp. 2002).

                 Under the circumstances, we conclude that the judgment of the jury could have been

reasonably affected by the State=s use of false testimony and its failure to correct the same. See Granger,

683 S.W.2d at 391; Sambrano, 754 S.W.2d at 771. The federal constitutional due process error here

calls for a reversal of the conviction because we are not convinced beyond a reasonable doubt that the error

did not contribute to the conviction. See Tex. R. App. P. 44.2(a). The court erred in overruling the motion

for new trial.


        Society wins not only when the guilty are convicted but when criminal trials are fair, our
        system of the administration of justice suffers when any accused is treated unfairly.


Brady v. Maryland, 373 U.S. 83, 87 (1963).

                 The prosecutor is:


        [T]he representative not of an ordinary party to a controversy, but of a sovereignty whose
        obligation to govern impartially is as compelling as its obligations to govern at all; and


                                                       19
       whose interest; therefore, in a criminal prosecution is not that it shall win a case, but that
       justice shall be done.
Berger v. United State, 295 U.S. 78, 88 (1935).

                 AWhether the nondisclosure was a result of negligence or design, it is the responsibility of the

prosecutor.@ Giglio, 405 U.S. at 154. The second point of error is sustained.


                                           Other Points of Error

                 We need not address the first and third points of error in view of our disposition of the

second point. We express our concern, in the event of a retrial, regarding the admissibility of the clinical

social worker=s testimony. A trial court must insure that an expert witness is truly testifying as an expert and

not merely serving as a conduit through which hearsay is brought before the jury. 2A Steven Goode, et. al;

Texas Practice: Courtroom Handbook on Texas Evidence Ch. 5, Rule 703 (West 2002) (citing United

States v. Lundy, 809 F.2d 392, 395 (7th Cir. 1987); Cole v. State, 839 S.W.2d 798, 813-16 (Tex.

Crim. App. 1990) (Maloney, J., concurring)).

                 The judgment is reversed and the cause remanded to the trial court.




                                                   John F. Onion, Jr., Justice

Before Justices B. A. Smith, Yeakel and Onion*

Reversed and Remanded

Filed: July 26, 2002


                                                      20
Publish


*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




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