                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                         Nos. 07-18-00431-CR & 07-18-00432-CR


                          THOMAS MAYHEW, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 108th District Court
                                    Potter County, Texas
           Trial Court Nos. 67,386-E & 75,005-E, Honorable Abe Lopez, Presiding

                                   February 18, 2020

                           MEMORANDUM OPINION
                    Before QUINN, C.J., and PARKER, and DOSS, JJ.

      Through our Cause No. 07-18-00432-CR, Thomas Mayhew (appellant) appeals

his convictions for two counts of indecency with a child by sexual contact in trial court

cause number 75,005-E. Four distinct convictions form the basis of his appeal in our

Cause No. 07-18-00431-CR. Two of the four entered in trial court cause number 67,386-

E involved the aggravated sexual assault of a child under 14, while the others were for

indecency with a child by contact or sexual contact. His two issues before us concern
whether the trial court erred in denying his motions for continuance and mistrial, and

whether trial counsel was ineffective. We affirm.

       Issue One – Continuance and Mistrial

       Appellant’s allegations about the continuance and mistrial stem from a purported

Brady1 violation. Allegedly, “prosecutorial misconduct [occurred] at trial consist[ing] of the

failure by the State to timely provide appellant with information containing potential

impeachment evidence of a fact witness who testified during guilt innocence.” The

information was disclosed by the State to defense counsel after the jury retired to consider

guilt/innocence and returned a verdict of guilty. We overrule the issue.

       Under Brady, the prosecution is obligated to disclose to the defense both

exculpatory and impeaching evidence. Brady, 373 U.S. at 87; Pena v. State, 353 S.W.3d

797, 810–11 (Tex. Crim. App. 2011). However, the burden lies with the defendant to

prove that the State failed to fulfill its duty. Perales v. State, No. 07-12-00290-CR, 2013

Tex. App. LEXIS 11476, at *3 (Tex. App.—Amarillo Sept. 5, 2013, no pet.) (mem. op., not

designated for publication); Pitman v. State, 372 S.W.3d 261, 264 (Tex. App.—Fort Worth

2012, pet. ref’d).       This burden normally requires him to establish that 1) pertinent

information was not disclosed; 2) the undisclosed information was exculpatory or

susceptible to being used as impeachment evidence favorable to the accused, and 3) the

data was material. Pena, 353 S.W.3d at 809; Perales, 2013 Tex. App. LEXIS 11476, at

*3. When such information was not concealed but rather untimely disclosed, a defendant

must also show that he was prejudiced by the delay. Little v. State, 991 S.W.2d 864, 867




       1   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

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(Tex. Crim. App. 1999); State v. DeLeon, 971 S.W.2d 701, 705–06 (Tex. App.—Amarillo

1998, pet. ref’d).

       Interestingly, prejudice is also a component of materiality, according to our Court

of Criminal Appeals. See Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006)

(stating that “[i]ncorporated into the third prong, materiality, is a requirement that [the]

defendant must be prejudiced by the state’s failure to disclose”). Indeed, the tests used

in assessing both are rather synonymous. See Banks v. Dretke, 540 U.S. 668, 698, 124

S. Ct. 1256, 157 L. Ed. 2d 1166 (2004) (stating that “[u]nless suppressed evidence is

‘material for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice

to overcome [a] procedural default’”).     For instance, purported Brady information is

material when “there is a reasonable probability that had the evidence been disclosed,

the outcome of the trial would have been different.” Salazar v. State, 222 S.W.3d 10, 14

(Tex. App.—Amarillo 2006, pet. ref’d); see also Banks, 540 U.S. at 698 (stating that

materiality is shown when the evidence could reasonably be taken to put the whole case

in such a different light as to undermine confidence in the verdict). In turn, prejudice

arising from the failure to timely disclose is shown when the “result of the proceeding

would have been different had the evidence been disclosed earlier.” State v. Tarin, No.

04-17-00198-CR, 2018 Tex. App. LEXIS 3055, at *18 (Tex. App.—San Antonio May 2,

2018, pet. ref’d) (mem. op., not designated for publication); accord Little, 991 S.W.2d at

867 (requiring the defendant to establish prejudice and stating that, under the present

circumstances, “he cannot show that the outcome of the proceeding would have been

different had that fact been disclosed earlier”). So, since both materiality and prejudice

depend on the probability of a different outcome had the data been revealed, undertaking



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the analysis of one effectively encompasses the other. And, finally, in establishing if the

outcome would have differed, the defendant’s burden obligates him to assess his claim

“in light of all the evidence.” Ex parte Lalonde, 570 S.W.3d 716, 725 (Tex. Crim. App.

2019) (quoting Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002)). The mere

chance that the undisclosed data “might have helped . . . or affected the trial’s outcome”

is not enough. Id.

       Here, appellant’s victims were two children with whom he lived. The charges

against him were instigated after a 16-year-old (Ivory) saw him and one of the two children

laying on a couch together and staring at the ceiling. Ivory characterized the activity as

odd or “weird” but saw no touching or the like. That resulted in her informing the children’s

mother about the incident.      Eventually, Ivory contacted the police, as well.        That

communication eventually led to an investigation and appellant’s ultimate prosecution.

During trial, Ivory related the foregoing incident to the jury. Little else was said by her,

though.

       The alleged Brady information in question concerned a much earlier incident

between Ivory and appellant. Apparently, the latter sexually assaulted her, too, years

earlier.   She described that assault during an exchange with one of the State’s

prosecutors in preparation for trial. Ivory then told her mother about the exchange with

the prosecutor and what she said. Yet, “her recall [of appellant’s assault upon her]

differed from her mother’s recall of what Ivory had told her . . . regarding this prior

extraneous offense,” according to the Brady notification given defense counsel. That

resulted in Ivory telling the prosecutor with whom she originally spoke that her present

recollection of the assault differed from her earlier recollection. Another prosecutor



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uncovered this bit of information after the guilt/innocence phase of the trial resulted in a

guilty verdict and notified defense counsel of it.

       Upon being afforded the Brady notification, defense counsel moved for a

continuance. So too did he request a mistrial, contending that “if I would have had that

material – had knowledge of that, then I could have used that maybe to impeach the

witness about her recount of some of the events that she testified to.” Because he lacked

it, he told the trial court he “would be asking for a mistrial.” Later, counsel added that “I’m

entitled to a mistrial on this case because I could have used that information . . . to

impeach her because she was testifying from her memory on things that occurred years

and years ago.” That “may have been an appeal to the Jury that she may have not

remembered correctly.” Though counsel conceded, while talking to the trial court, that

the substance of Ivory’s testimony merely encompassed the instigation of the police

inquiry into his assaults upon the two children, he nevertheless “could have used her poor

memory against her when she was testifying even about that because . . . she said that

she . . . caught them” laying on the couch looking at the ceiling. The trial court ultimately

denied the requests for a continuance and mistrial.

       The substance of the foregoing discussion between defense counsel and the trial

court is determinative of appellant’s current complaint on appeal. Most notably, defense

counsel said nothing about the inculpatory evidence presented by the State while

demanding a mistrial and continuance. Again, his burden obligated him to address the

potential for a different outcome “in light of all the evidence.” He did not do that.

       Instead, defense counsel merely focused on the allegedly impeaching nature of

Ivory’s “poor memory.” He sought to use her “poor memory” to impeach her on an issue



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bereft of misconduct, that is, on whether she simply saw appellant and one of the children

laying on a couch staring at the ceiling. At best, that issue was tangential to appellant’s

guilt or innocence.

       Additionally, his basis for thinking he could impeach Ivory related to some

difference in how she recalled appellant having sexually assaulted her years earlier.

Presumably, to reach his goal he would have had to broach that extraneous sexual

assault to the jury. Yet, missing from defense counsel’s argument below (and appellant’s

argument here) is explanation about how allowing defense counsel to inform the jury

about a distinct sexual assault on a third victim helped appellant. Nor can we contrive a

reasonable scenario in which divulging that tidbit of information would be more beneficial

to appellant’s cause. Defense counsel telling the jury to ignore Ivory’s testimony on a

tangential issue because she may not remember aspects of how appellant sexually

assaulted her seems somewhat harmful in our view.

       Nor did defense counsel attempt to explain to the trial court how Ivory’s past and

present recollection of his assault upon her differed. The difference may or may not have

been substantive. It may or may not have dealt with an utterly unimportant factoid.

Instead, the trial court was left to speculate about that, as was this Court. Yet, such

speculation could have been avoided when the trial court offered appellant the opportunity

to examine Ivory, who had yet to leave the courthouse.           Instead, defense counsel

responded to the opportunity with: “I – I’m not going to agree to that.” Apparently

surprised by that reply, the trial court asked: “You don’t want to hear from her?” “No, sir,”

counsel replied. He wanted “to get the investigation done because apparently if she had

memory problems, we’re going to need to talk to a third-party to identify that.” At hand



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was the very chance to determine whether Ivory even “had memory problems,” but

appellant did not want to pursue it.

       Simply put, defense counsel had an immediate chance to fulfill his burden to

establish the materiality of the Brady information in question. Yet, he let it go and

apparently assumed that there was a consequential difference between Ivory’s past and

present recollection of appellant’s distinct assault upon her. Then, he founded his entire

Brady complaint upon that unproven assumption. His decision resulted in the trial court

denying the Brady challenge, request for a mistrial, and continuance. It did so because

it viewed Ivory as “not much of a fact witness as to anything really” and as having “nothing

to offer about the incidences or anything that happened to the girls.” In other words, the

trial judge believed either that the undeveloped assumption about Ivory’s ability to recall

an extraneous offense was immaterial or that the State’s delay in revealing the matter

was nonprejudicial.

       Given the circumstances previously discussed, the inculpatory testimony provided

by the two children appellant victimized, and appellant’s own consciousness of guilt

exemplified by his effort to flee and hide once State authorities removed the children from

the home, we cannot disagree with the trial court.         Appellant did not establish a

reasonable probability that the trial’s outcome would have differed had the supposed

Brady evidence been revealed in a timely manner.

       Issue Two – Ineffective Assistance of Counsel

       As for the ineffective assistance of counsel matter, appellant contends that trial

counsel’s effort fell below the objective standard of reasonableness because counsel

mistakenly believed that 1) certain juvenile adjudications of appellant involving sexual



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misconduct could not be used to enhance punishment and 2) appellant was eligible for

probation. Furthermore, this deficiency in counsel’s knowledge of the law allegedly was

prejudicial because it resulted in appellant rejecting plea offers from the State. We

overrule the issue.

       The record contains evidence of trial counsel informing appellant about several

plea offers, appellant declining them, and appellant opting to risk trial. Missing though is

evidence of the plea terms being offered and the criminal counts to which those offers

pertained. We are left to speculate about that. Appellant’s six convictions resulted in

sentences from 50 years to life in prison.       Whether the offers differed from those

sentences in any significant way is simply a matter of conjecture, given the record before

us. So too are we left to speculate about the substance of any conversations between

trial counsel and his client regarding those offers and the factors, if any, considered in

appellant’s decision to reject them. He may have been influenced by something trial

counsel said or he may have merely sought to “roll the dice.” We do not know.

       “[C]laims of ineffective assistance ‘are not built on retrospective speculation.’”

Gallegos v. State, No. 07-17-00137-CR, 2017 Tex. App. LEXIS 11755, at *6 (Tex. App.—

Amarillo Dec. 18, 2017, pet. ref’d) (mem. op., not designated for publication). Yet, that is

what we are being asked to do, engage in retrospective speculation. Without evidence

about the terms of the plea offers, counsel’s discussion with appellant about them, and

the reasons why appellant rejected them, we cannot assess whether the mistakes

attributed to trial counsel created a reasonable probability, or probability sufficient to

undermine confidence in the outcome, that the result of the proceeding would have

differed. See Avila v. State, No. 07-18-00143-CR, 2019 Tex. App. LEXIS 6364, at *4–5



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(Tex. App.—Amarillo July 24, 2019, no pet.) (per curiam) (mem. op., not designated for

publication) (so describing the prejudice needed to uphold a claim of ineffective counsel).

So, appellant failed to satisfy his burden to prove counsel’s mistakes prejudiced him, and

that was a prerequisite to succeeding upon a claim of ineffective assistance. Id.

       The judgments are affirmed.



                                                        Brian Quinn
                                                        Chief Justice

Do not publish.




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