Opinion issued February 25, 2016




                                     In The

                              Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00366-CR
                           ———————————
                    TRACE ROGERS SMITH, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 207th District Court
                           Comal County, Texas1
                     Trial Court Case No. CR2014-093


                         MEMORANDUM OPINION


1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for
     the Third District of Texas. Misc. Docket No. 15–9054 (Tex. Mar. 24, 2015); see
     TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases). We
     are unaware of any conflict between precedent of the Court of Appeals for the
     Third District and that of this Court on any relevant issue. See TEX. R. APP. P.
     41.3.
      Trace Rogers Smith was convicted of attempted capital murder, aggravated

kidnapping, tampering with physical evidence, and aggravated robbery in

connection with an attack at a drug dealer’s home. In a single issue, he contends

that the State violated Brady disclosure requirements when it failed to inform him

that one of the witnesses against him, Clint Barkley, had a prior murder conviction.

      Because Smith does not allege that the State knew of the prior conviction

and the only evidence on the issue indicates that the State was unaware of the

conviction, we affirm.

                                     Background

      Smith and those in his circle of acquaintances used and sold drugs. One

night they congregated at a local drug dealer’s house. One of the people there that

evening was Debra Harris,2 who had recently moved back to town. Smith went into

the back bedroom with several women. He came out to the living room and told

Harris that the women wanted her in the back room. Smith then sat “approximately

ten feet from the door” of the bedroom.

      Harris went into the back room and was confronted by three women. One

was upset that Harris claimed to be romantically involved with her boyfriend. The

other, who was Smith’s girlfriend, was paranoid that Harris was a “snitch” and had

“cloned” her phone to obtain information about drug transactions. The third had no


2
      We will refer to the complainant as Debra Harris to protect her privacy.
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independent issue with Harris but was friends with at least one of the other two

women. During the confrontation, these women stabbed Harris eight times. They

used a taser on her repeatedly. Harris was kicked in the head and torso.

Additionally, the women told Harris to remove her clothes, and one of them

reached inside of her “to check for a wire.”

      Smith entered the room at various times as this was occurring. At one point,

Smith entered the room to give one of the women a cell phone, which was used to

videotape the attack. At another point, Smith entered the room with a shotgun and

yelled at Harris to “shut up” because she was screaming so loudly. Harris was

already naked when he entered that second time. At some other point, Harris tried

to escape, reached an arm out of the bedroom, and, in the process, knocked over

and broke a glass vase in the hallway. Smith was at the door. He pushed Harris

back inside and told the others to “wrap it up.”

      The confrontation ended with the women handcuffing Harris’s wrists,

placing shackles on her ankles, inserting a gag in her mouth made from a tennis

ball, and blindfolding her. At that point, Smith’s girlfriend came out and told him

that Harris was “bleeding out.” He understood that to mean that she might die from

blood loss.

      Smith entered the bedroom, used a dog chain to connect the handcuffs to the

shackles, in effect “hog-tying” Harris, wrapped her in a sheet, and carried her to a


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shed on the property. He placed her in the middle of the shed so she could not

make any noises and locked the door. The undisputed evidence was that this

occurred late at night with temperatures below freezing.

      Smith and the other women left the property while Harris remained locked

in the shed. Over time, Harris managed to work free of the handcuffs and remove

all of the binding except the shackles on her ankles. She climbed out of a high

window, drug herself along the ground to a nearby house, and hid in an unlocked

car until morning, when she was discovered and taken to the hospital.

      Smith, the three women, and the homeowner were arrested and charged with

various crimes. They testified at each other’s trials. The testimony from the co-

defendants as well as from other fact witnesses detailed the relationships between

these individuals, who were all associated through their drug use and sales.

      Some witnesses admitted to having criminal histories and engaging in

felonious behavior. For example, Smith testified that he had been convicted of two

prior felonies and had been out of prison only two months when the attack on

Harris occurred. He also admitted to selling drugs to children. Harris testified that

the home owner had previously held a friend of hers in the same shed for days. The

friend had been “put in the same shed . . . handcuffed and shackled, and kept in

there as a slave. She was doped up and raped repeatedly by different men for two

weeks.”


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      Smith confirmed various aspects of his involvement. He admitted to being in

the room and then calling Harris back there. He further admitted that he heard

Harris yelling loudly, entered the room with a shotgun, saw Harris naked, and

yelled for her to shut up. Finally, he admitted that he hog-tied her, wrapped her in a

sheet, put her in the shed, and personally locked the door.

      He testified that he “didn’t expect them to kill her” but “that’s what the

women were trying to do.” He agreed that he “carried a naked woman who had

been stabbed, tased, bound, gagged, blindfolded, and left her in a shed” but insisted

that he only “assisted in the last part of it.” When attempting to reconcile this

involvement with his earlier testimony that he opposes violence against women, he

explained:

      I never once put my hands on that woman. I never once touched
      [Debra]. When I went in there to put the dog chain on the handcuffs, I
      never touched her. All I touched was the chain. When I picked her up
      and she was . . . in the sheet, that’s all I touched was the sheet. . . . All
      I did was touch the sheet, pick the sheet up, and I placed her in the
      middle of the shed. I never once touched [Debra] at all with a knife,
      with my hands, not—nothing. I never once touched that woman in any
      violent way at all.

Finally, Smith admitted that, after he left the property, he burned Harris’s

belongings because he “didn’t want to be caught with the stuff.”

      Another witness was Clint Barkley, who had driven Harris to the house

where the attack occurred. He told the jury that he was living in the Comal County

jail and had been “sentenced to prison.” He testified that he heard noises coming

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from the back room where Harris had gone, including a lot of banging sounds

similar to a wrestling match. He heard a taser going off repeatedly and thought he

heard Harris yell for him. He saw Smith “guarding the door” and going in and out

of the bedroom. He later saw Smith and the homeowner standing outside of the

shed but could not see what they were doing. He admitted that, even with all of this

knowledge, he left the property without Harris.

      What Barkley did not disclose was that, in addition to whatever crimes he

committed that led to his admitted prison sentence, he also had been convicted of

murder in 2000 in Florida. Barkley volunteered that information while testifying at

the subsequent trial of one of Smith’s co-defendants. Following his testimony, the

State notified Smith—who had already been convicted—of Barkley’s testimony

and informed him that the State had been unaware of the conviction when Barkley

testified at Smith’s trial. That undisclosed criminal history is the basis of this

appeal.

      According to Smith, Barkley’s testimony as a non-accomplice witness was

necessary for his attempted-murder conviction and, had Smith known of the prior

murder conviction, Barkley would have been subject to impeachment. According

to Smith, by discrediting the non-accomplice witness, the trial likely would have

ended differently.




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               Brady Requires Disclosure of Known Information
                that is Favorable to the Defendant and Material

      The Supreme Court in Brady v. Maryland held “that the suppression by the

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

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

good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194,

1196–97 (1963). “The purpose of this rule [is] to avoid an unfair trial of the

accused . . . .” Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011). To find

reversible error under Brady, a defendant must show that

      (1)    the State failed to disclose evidence, regardless of the
             prosecution’s good or bad faith;

      (2)    the withheld evidence is favorable to him;

      (3)    the evidence is material, that is, there is a reasonable probability
             that had the evidence been disclosed, the outcome of the trial
             would have been different.

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

challenging the nondisclosure has the burden to establish the Brady violation. Id.

      Brady applies to situations in which the defendant discovers post-trial that

there was “information which had been known to the prosecution but unknown to

the defense.” Pena, 353 S.W.3d at 810 (quoting United States v. Agurs, 427 U.S.

97, 103, 96 S. Ct. 2392, 2397 (1976)). While Brady requires the State to disclose

known information that is favorable and material, “Brady and its progeny do not


                                           7
require prosecuting authorities to disclose exculpatory information to defendants

that the State does not have in its possession and that is not known to exist.” Pena,

353 S.W.3d at 810 (quoting Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex. Crim.

App. 1990) (en banc)).

      In a recent case concerning undisclosed criminal histories of witnesses, a

court of appeals held that “access to information” is not the same thing as

“possession of the information”; therefore, undisclosed criminal histories of which

the State has no knowledge do not violate Brady. See In re State ex rel. Munk, 448

S.W.3d 687, 693 (Tex. App.—Eastland 2014, no pet.); see also Gomez v. State,

No. 14-97-00188-CR, 1999 WL 497572, at *2 (Tex. App.—Houston [14th Dist.]

July 15, 1999, pet. ref’d) (mem. op., not designated for publication) (holding that

when prosecutor did not discover that murder victim had criminal record because it

was listed under variant of victim’s name, there was no Brady violation).

                    The Nondisclosure Did Not Violate Brady

      The focus of Smith’s appeal is on whether Barkley’s prior murder conviction

was “favorable” and “material.” Smith does not offer any argument concerning

whether the State knew of the conviction.

      The State has affirmatively stated that it did not know of Barkley’s

conviction when Barkley testified at Smith’s trial. Smith does not present any

evidence that would contradict this assertion. Nor does he dispute it. Further, Smith


                                         8
makes no argument that the State had a duty to discover out-of-state criminal

records.

      Without any suggestion that the State knew of the prior conviction before

Barkley testified against Smith or had a duty to discover it, we conclude that Smith

has failed to establish a Brady violation. See Pena, 353 S.W.3d at 811; Hafdahl,

805 S.W.2d at 399 n.3; Munk, 448 S.W.3d at 693; see also Gomez, 1999 WL

497572, at *2.

      We overrule Smith’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                               Harvey Brown
                                               Justice

Panel consists of Justices Radack, Massengale, and Brown.

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




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