Affirmed and Memorandum Opinion filed July 30, 2013.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-12-00095-CR

                RAYMOND PRESTON MORENO, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 337th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1264587

                 MEMORANDUM                      OPINION

      The appellant, Raymond Preston Moreno, was charged with killing the
complainant, Favian Ramirez, during a drive-by shooting as the complainant and
his companion took cover behind a truck. A jury convicted appellant of murder,
see Tex. Penal Code Ann. § 19.02 (West 2011), and he appeals, presenting four
issues. We affirm.

      First, appellant argues that the evidence was insufficient to establish that he
intended anything more than to vandalize the truck the complainant hid behind.
Appellant also argues that there was affirmative evidence that he was merely
reckless in shooting the truck, which entitled him to a manslaughter instruction.
We disagree that the evidence at trial affirmatively demonstrated a lack of intent to
kill or seriously injure the men behind the truck or a lack of knowledge that the
bullets were reasonably certain to cause death by passing through the truck and
striking them.

      Appellant also argues that the trial court should have permitted him to
introduce evidence that the complainant may have been selling drugs. We hold the
trial court did not abuse its discretion, however, by concluding that the prejudicial
effect of this evidence substantially outweighed its probative value. See Tex. R.
Evid. 403. Finally, appellant contends that the prosecutor’s failure to turn over
evidence of a witness’s prior convictions violated his constitutional rights. We
conclude that the non-disclosure of this evidence does not “‘undermine[ ]
confidence in the outcome of the trial’” and therefore does not justify reversal.
Kyles v. Whitley, 514 U.S. 419, 434 (1995); Ex Parte Miles, 359 S.W.3d 647, 666
(Tex. Crim. App. 2012).

                                  BACKGROUND

      One night, three young men, including appellant and his cousin, visited a
residential neighborhood to buy marijuana. The group would not buy marijuana
that evening, however. Instead, a fistfight broke out, tensions escalated, shots were
fired from a moving car, and someone died.

      Appellant and his two companions arrived to meet Genaro Rios, an alleged
marijuana dealer, at around midnight.        Rios and a group of young men had
congregated near Rios’s pick-up truck. The complainant was among the men in
Rios’s group. Rios’s truck was parked on the street near the complainant’s home.


                                         2
       A fight broke out between members of the two groups. Rios’s group won
the fight, bloodying appellant’s cousin. Appellant’s group then retreated in their
car, but the car soon returned.      As the car drove past with appellant in the
passenger’s seat, Rios stood behind his truck. Appellant threw a glass bottle that
hit the truck’s windshield. Then the car drove away.

       Rios would later testify that, during the next forty-five minutes to an hour,
appellant’s cousin called, “threatening that they were going to come shoot [Rios],
come shoot [Rios’s] house. . . . They [were] going to come get [his] family.”
Appellant may have similarly threatened Rios, but Rios could not distinguish
appellant’s voice from the cousin’s. The third member of appellant’s group would
testify that both cousins were upset, and that appellant said, “[W]e [are] going to
get back at them . . . .” There is no evidence that appellant or his cousin ever
expressed a desire to damage Rios’s truck further.

       Rios was scared.     He and the complainant took the truck to retrieve a
shotgun and returned to the scene of the fight. Rios again parked his truck on the
street near the complainant’s house. The complainant was in the passenger’s seat,
closest to the sidewalk. Another man stood outside the passenger’s window,
visiting with the complainant and Rios. The three listened to music and joked.

       Rios then noticed a police car approaching in his rearview mirror. He and
the other two men decided to go into the complainant’s house. Rios testified that
he and the complainant waited for the police car to pass, then they exited the truck,
leaving the shotgun inside.     As the officer drove past, he observed two men
“outside . . . by a car or truck,” “either on the sidewalk or in the front yard area” by
the complainant’s house. Rios got out of his truck and was “[r]ight in the middle
of the street.”

       Rios turned to see appellant’s car headed toward him with the headlights
                                           3
turned off. A witness would later say that appellant’s car “couldn’t have been 40
yards behind [the police car].” Rios screamed, “That’s them” and told the others to
“watch it.”

      Rios testified that someone on the car’s passenger side said “Hey,
[expletive], what’s up?” This passenger had a gun. Rios ran around “the front of
[his] truck.” He “d[o]ve on the ground on the other side,” “tr[ying] to use [the
truck] for cover.” Rios heard four or five shots. Police would find bullet holes in
his truck’s windshield, hood, and grill. Rios landed on the ground next to the
complainant, who had been shot in the neck and was dying. A coroner would later
testify that the bullet’s entrance wound was consistent with the bullet having struck
the truck before hitting the complainant.

      Shortly before the shots, the passing police officer had decided to turn
around to visit with the men he had just seen. As the police car turned around—it
was “[m]aybe five [or] six” houses away—the officer saw appellant’s car and
heard multiple shots. Appellant’s car then accelerated toward the officer, passing
the police car. The officer gave chase, and appellant’s car ultimately ran into a
utility pole. Appellant then continued to flee on foot until he “jet[ted] across the
front of” the officer’s car and was run over. Appellant’s cousin and the third
member of appellant’s group were also in the car and were later apprehended.

      At trial, neither appellant nor his cousin testified. The third man in their
group testified that appellant was the shooter. The jury convicted appellant of
murder, and this appeal followed.

                                     ANALYSIS

      Two of appellant’s four issues focus upon the evidence of his mental state
when he allegedly fired the bullet that killed the complainant. We begin with those


                                            4
two issues. Next, we turn to appellant’s argument that the trial court erroneously
excluded evidence that the complainant may have been a drug dealer. Finally, we
address appellant’s arguments that the State’s failure to turn over exculpatory
evidence requires reversal.

I.    The record contains sufficient evidence of appellant’s mental state.

      In his first issue, appellant argues that the evidence was insufficient to
establish the mental state necessary for murder. We disagree.

      When reviewing the sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based
upon that evidence and the reasonable inferences therefrom, a jury was rationally
justified in finding guilt beyond a reasonable doubt. Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012). The jury is the sole judge of the credibility and
weight to be attached to the testimony of witnesses. Id. The jury is not permitted
to draw conclusions based upon speculation because doing so is not sufficiently
based upon facts or evidence to support a finding beyond a reasonable doubt. Id.
When the record supports conflicting inferences, we presume that the jury resolved
the conflicts in favor of the verdict and defer to that determination. Id. at 525–26.

      A culpable mental state is almost always proven through circumstantial
evidence. Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.—Houston [14th
Dist.] 1996, no writ). Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor. Hooper v. State, 214 S.W.3d 9, 14–15 (Tex.
Crim. App. 2007). Thus, circumstantial evidence alone can suffice to establish
guilt. Id. at 15. The jury must review all of the evidence and may reasonably
conclude from the circumstantial evidence that the requisite mental state existed.
Mouton v. State, 923 S.W.2d at 223. “[It] may infer the intent to kill from the use
of a deadly weapon unless it would not be reasonable to infer that death or serious
                                          5
bodily injury could result from the use of the weapon.” Ross v. State, 861 S.W.2d
870, 873 (Tex. Crim. App. 1992).

       To convict appellant of murder, the State had to prove that “the death of an
individual” was appellant’s “conscious objective,” or that appellant was “aware
that his conduct [wa]s reasonably certain to cause th[is] result.” Tex. Penal Code
Ann. §§ 6.03, 19.02(b)(1) (West 2011). That is, the State had to establish that
appellant “intentionally or knowingly cause[d] the death of an individual.” See id.
§§ 6.03, 19.02(b)(1). The State also could have sustained its burden by proving
that appellant “intend[ed] to cause serious bodily injury and commit[ted] an act
clearly dangerous to human life.” Id. § 19.02(b)(2).1

       We need not address each culpable mental state because we conclude the
State introduced sufficient evidence to establish that appellant intended to cause
death. There was evidence that appellant fired at Rios’s truck as Rios and the
complainant sought cover behind it. Earlier in the evening, appellant’s cousin, and
possibly appellant himself, had threatened to shoot Rios. A police officer testified
that, as he approached a vehicle near the complainant’s house, he observed two
individuals on the other side of the vehicle. The jury could have inferred that
appellant, who began shooting moments after the officer passed, also saw men on
the other side of the truck and was aiming at them. Such knowledge would be
consistent with Rios’s testimony that he ran from appellant’s car as it came down
the street. Testimony that the shooter said “[h]ey, [expletive], what’s up?” before
firing further supports a finding that appellant knew people were behind the truck

       1
          Of course, a conviction for murder under any theory requires that the death of a human
being result from the defendant’s acts. See Tex. Penal Code Ann. § 19.02. Appellant does not
argue that the State introduced insufficient evidence to support this element of murder.
Moreover, under the doctrine of transferred intent, it was unnecessary for the State to prove that
appellant intended to kill the complainant as opposed to Rios, for example, who sought cover
next to the complainant. See id. § 6.04(b)(2) (West 2011).

                                                6
and shot at them with the intent to kill. See Ross, 861 S.W.2d at 873. Finally the
third member of appellant’s group testified that appellant fired “into the crowd.”2

       Appellant argues that the State failed to introduce sufficient evidence of his
mental state because “[t]here was . . . no mention about getting weapons and using
those weapons against anyone.” This argument ignores Rios’s testimony that
either appellant or appellant’s cousin threatened to shoot him. Appellant also
argues that “there was no testimony that [he] or anyone in the car shouted at any
person.”       This ignores Rios’s testimony that the shooter shouted as the car
approached. We must review the sufficiency of the evidence in the light most
favorable to the jury’s verdict; we cannot disregard this evidence.                          See
Montgomery, 369 S.W.3d at 192

       Appellant also makes much of evidence that some of his bullets hit the truck,
including possibly the bullet that killed the complainant. We address this argument
more thoroughly in the next section.            For purposes of appellant’s sufficiency
challenge, however, we need only say that shooting at the truck supports a finding
that appellant intended to kill the people behind the truck; it does not preclude such
a finding. See Ross, 861 S.W.2d at 873 (use of deadly force can support inference
of intent to kill unless inference would be unreasonable).                 Because the State
introduced sufficient evidence of appellant’s mental state, we overrule appellant’s
first issue.
II.    Because the record contains no affirmative evidence that appellant was
       guilty only of manslaughter, the trial court correctly denied his request
       to instruct the jury on this theory.
       In his second issue, appellant contends that the trial court erred by denying
       2
         Appellant argues that other aspects of this witness’s testimony suggest that the witness
could not have seen where appellant was aiming. In reviewing the sufficiency of the evidence,
however, we view testimony in the light most favorable to the jury’s verdict. See Montgomery v.
State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).

                                               7
his request to instruct the jury on the lesser-included offense of manslaughter. The
Texas Code of Criminal Procedure provides that, “[i]n a prosecution for an offense
with lesser included offenses, the jury may find the defendant not guilty of the
greater offense, but guilty of any lesser included offense.” Tex. Code Crim. Proc.
Ann. art. 37.08 (West 2012). We employ a two-step analysis to determine whether
a lesser-included-offense instruction should be given. Sweed v. State, 351 S.W.3d
63, 67 (Tex. Crim. App. 2011). In the first step, the inquiry is whether the lesser-
included offense is included within the proof necessary to establish the offense
charged. Id. at 68. Here, all parties correctly agree that manslaughter is a lesser-
included offense of murder. See Girdy v. State, 213 S.W.3d 315, 318 (Tex. Crim.
App. 2006). We therefore proceed to the second step.

      In this step, we determine whether there is some evidence from which a
rational jury could acquit the defendant of the greater offense while convicting him
of the lesser-included offense. Sweed, 351 S.W.3d at 68. There must be some
evidence in the record “that would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser-included offense.” Hall v. State,
225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (internal quotation marks omitted).
Further, “anything more than a scintilla of evidence may be sufficient to entitle a
defendant to a lesser charge.” Id.

      “Meeting this threshold requires more than mere speculation—it requires
affirmative evidence that both raises the lesser-included offense and rebuts or
negates an element of the greater offense.” Cavazos v. State, 382 S.W.3d 377, 385
(Tex. Crim. App. 2012). “[T]he evidence produced must be sufficient to establish
the lesser-included offense as a ‘valid, rational alternative’ to the charged offense.”
Id. Thus, for a manslaughter instruction to be proper here, some evidence would
have to demonstrate affirmatively that appellant was merely reckless when he

                                          8
killed the complainant and that he therefore lacked the mental state necessary for
murder.

       Appellant argues three pieces of evidence establish that he killed the
complainant during a reckless attempt to vandalize Rios’s truck. First, appellant
points to the three bullet holes found in the truck. Next, he relies upon a coroner’s
testimony that the fatal bullet may have ricocheted off of the truck before striking
the complainant. Finally, appellant contends that throwing a bottle at the truck
earlier in the evening is some evidence that the truck was his target when he
returned to the scene and began shooting. Appellant argues that “[i]nstead of
gunfire sprayed into a crowd or towards the complainant’s house, all of the
evidence indicated that Appellant fired no more than five shots at Rios’ truck and
only Rios’ truck.”

       We disagree with appellant’s arguments because Rios was behind the truck
when appellant fired these shots. Indeed, according to the undisputed evidence,
appellant could not have shot Rios without shooting through the truck. Under
these circumstances, shooting the truck does not affirmatively evidence a reckless
act of vandalism or a lack of knowledge that the men behind the truck were
reasonably certain to be killed.

       Several cases support this conclusion, but we find Robinson v. State, 945
S.W.2d 336, 338, 342–43 (Tex. App.—Austin 1997, pet. ref’d), particularly
persuasive.3 In that case, a drive-by shooter fired multiple shots at an apartment
building, killing an innocent resident. Id. at 337–38. There was evidence that the
       3
          See also Cavazos v. State, 382 S.W.3d at 385 (close-range shooter who later claimed he
meant no harm not entitled to instruction on manslaughter); Mays v. State, 318 S.W.3d 368, 386–
87 (Tex. Crim. App. 2010) (evidence that shooter suffered from paranoid delusions did not
support inference that killing was merely reckless); Medina v. State, 7 S.W.3d 633, 638–39 (Tex.
Crim. App. 1999) (drive-by shooter who aimed at crowd not entitled to manslaughter
instruction).

                                               9
shooter’s bullets passed through a utility room and that, at the moment he fired, the
shooter could not see the person he allegedly intended to shoot. Id. at 340. The
shooter argued that this evidence entitled him to a manslaughter instruction
because it suggested that he shot the utility room to intimidate his intended target,
not to injure or kill. Id. at 342–43. The trial court declined to give the instruction,
and the court of appeals affirmed. Id.

       In affirming, the court of appeals held that merely hitting the utility room
failed to affirmatively show that the shooter was aiming exclusively for it. Given
the events prior to the shooting (e.g., earlier gunfire between the shooter and his
intended target, the shooter’s “haste to procure an automatic rifle,” and the
“intentional firing”) the jury “could not rationally conclude that [the shooter] killed
the victim for reasons unrelated to causing serious bodily injury or death to [the
intended target].”    Id.    While one could speculate that the shooter sought to
intimidate by firing at the utility room, all affirmative evidence pointed to an intent
to kill or injure. See id.

       Similarly here, the only evidence that the appellant was aiming for the truck
is the fact that he hit it. Placed in context, this evidence demonstrated an intent to
kill—or at least seriously injure—one or more of the people behind the truck. The
threats of violence, the presence of the complainant and Rios inside the truck just
before the shooting, Rios’s testimony that he ran around the front of the truck as
the shooter fired, and the three bullet holes in the area of the truck behind which
Rios sought cover—all affirmatively show that Rios was the target, not the truck.
By contrast, the record contains no affirmative evidence that appellant did not
know people were behind the truck or that the truck was his exclusive target.

       Moreover, even assuming that appellant only intended to damage the truck
when he threw a bottle at it, this evidence does not affirmatively demonstrate that

                                          10
appellant aimed solely for the truck when he began shooting. Bullets, unlike
bottles, can pass through obstacles, striking targets on the other side with lethal
force. Additionally, neither appellant nor his cousin ever expressed an intent to
damage Rios’s truck further. To the contrary, Rios testified that the threats were to
“shoot [him]” and to “come shoot [his] house.”

       Indeed, to conclude appellant aimed solely for the truck, one would have to
focus upon the evidence that appellant hit the truck while disregarding the
considerable evidence that appellant was aiming for one or more of the people
behind it. Under a lesser-included-offense analysis, evidence “cannot be plucked
out of the record and examined in a vacuum.” See Godsey v. State, 719 S.W.2d
578, 584 (Tex. Crim. App. 1986). Accordingly, we hold that the trial court did not
err in denying appellant’s request for a manslaughter instruction, and we overrule
appellant’s second issue.

III.   The trial court did not abuse its discretion by excluding evidence that
       the complainant may have been a drug dealer.
       In appellant’s third issue, he argues that the trial court erroneously excluded
evidence that police “located marijuana, clear plastic bags, and a digital scale” near
the scene of the shooting and that police found marijuana and $2,435 in cash in the
complainant’s bedroom.      The trial court excluded this evidence, finding that
“whatever probative value this evidence would [have] is not much and certainly
the danger of confusing the jury and taking up time on a collateral matter
outweighs any probative value.”       We hold the trial court did not abuse its
discretion in so finding.

       Under Texas Rule of Evidence 403, “evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue

                                          11
delay.” We review a trial court’s decision to exclude evidence under Rule 403 for
an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1990) (op. on reh’g). We affirm if the court’s ruling is “within the zone of
reasonable disagreement.” Id.

       Appellant argues that the excluded evidence had probative value for two
reasons: (1) it rebutted the State’s characterization of the complainant as “the one
guy in the front yard who had nothing to do with that drug deal,” and (2) the
evidence would “call[ ] into question” “Rios[’s] attempt[ ] to present himself and
the complainant in a favorable light” by “expos[ing] that this drug deal was not a
‘one-time thing’ that only Rios was involved in.”

       The State argues the evidence was unfairly prejudicial because the jury
would assign less value to the complainant’s life if it concluded he was a drug
dealer.4 The State also contends that evidence of the complainant’s involvement in
the drug trade would have resulted in a distracting and time-consuming mini-trial
on the irrelevant issue of the complainant’s character.

       We conclude the trial court did not abuse its discretion by finding that the
potential for unfair prejudice substantially outweighed the evidence’s probative
value. As to probative value, appellant had a two-pronged defense at trial. He
contended that his cousin was the shooter, and he argued that the evidence was
insufficient to establish appellant’s mental state. The complainant’s involvement
in drug dealing had little relevance to either prong.

       As to the first prong, appellant does not argue—and we cannot conceive—
any theory under which the complainant’s involvement in the drug trade made it
more likely appellant’s cousin fired the fatal shot. As to the second, to the extent
       4
        The State does not argue that the evidence was inadmissible character evidence under
Texas Rule of Evidence 404.

                                            12
the excluded evidence was relevant at all, it could actually have hurt appellant’s
case. If anything, the State’s characterization of the complainant as an innocent
bystander made it less likely that appellant intended to shoot him. If appellant had
presented evidence that the complainant sold drugs, the jury might have concluded
(notwithstanding the unrebutted evidence to the contrary) that the complainant
participated in the drug deal and fight that led to his killing. This participation
would provide a direct motive for appellant to kill the complainant, just as he had a
motive to kill Rios. Instead, the State presented no evidence of a motive to kill the
complainant. The absence of such evidence supported the appellant’s defense that
he killed the complainant accidentally.5

       While the relevance of the excluded evidence was very low, its potential to
distract the jury was considerable. Evidence that the complainant sold drugs would
have infected the trial with irrelevant innuendo and encouraged the jury to
speculate upon the complainant’s culpability for his own death. Not only could
this speculation unfairly prejudice the State’s case, it had the potential to waste
time and distract the jury from relevant issues. As a result, we hold that the trial
court did not abuse its discretion in excluding the evidence, and we overrule
appellant’s third issue.

IV.    Even if the prosecutor failed to disclose favorable evidence to the
       appellant, that failure does not undermine our confidence in the verdict.
       In his fourth issue, appellant argues that the State violated his confrontation
rights and his due process rights under Brady v. Maryland by failing to disclose
       5
          Appellant suggests that the evidence may have been relevant to impeach Rios, but he
fails to point to any specific statement that the excluded evidence would contradict. Appellant
states that the evidence would contradict an impression Rios created that his selling drugs was
“‘a one-time thing,’” but Rios in fact testified that he already had sold drugs to appellant twice
during the week of the shooting. In any event, to the extent this evidence had some tendency to
impeach Rios, the trial court did not abuse its discretion by concluding that this relevance was
substantially outweighed by the risk of unfair prejudice.

                                               13
that Rios had a felony retaliation charge pending when he testified.6 See Tex.
Penal Code Ann. § 36.06 (West 2011) (making it a felony to, among other things,
threaten harm as retaliation against a witness or informant).

       On the day of jury selection, the prosecutor saw Rios at the courthouse and
told him that he was not scheduled to testify that day. Rios responded that “he was
at the courthouse for something else.” Moments later, the prosecutor informed
appellant’s trial counsel that she had seen Rios in the courthouse, but no one ever
asked Rios what he was doing there.

       After Rios testified, one of appellant’s trial counsel discovered Rios’s
pending retaliation charge.7 The prosecutor’s initial searches failed to retrieve this
charge because the charge misspelled Rios’s first name as “Ganaro” instead of
“Genaro.” Appellant moved for a new trial based upon the State’s failure to
disclose the pending charge, and the trial court denied the motion. Neither party
requested findings of fact or conclusions of law, and the trial court made none.

       We review a trial court’s ruling on a motion for new trial for an abuse of
discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view
the evidence in the light most favorable to the trial court’s ruling and uphold the
trial court’s ruling if it was within the zone of reasonable disagreement. Id. We do
not substitute our judgment for that of the trial court, but rather we decide whether
       6
         Rios’s criminal history is not in the record. The trial prosecutor’s affidavit states that
Rios had “a lengthy criminal history of misdemeanor Driving While Intoxicated cases and
Misdemeanor drug cases.” Appellant does not argue that failure to disclose these convictions
violated his due process rights, but focuses exclusively upon Rios’s then-pending retaliation
charge. We limit our analysis accordingly.
       7
         An affidavit submitted by one of appellant’s trial counsel states that she learned of the
pending charge “[a]fter Mr. Rios’ testimony.” Her affidavit does not state whether she
discovered this information before or after the trial concluded. Appellant’s other trial counsel
swore that he “never, at any point prior to or during the trial, learned [of the pending charge]
from any other source.” Given the lack of argument or evidence to the contrary, our analysis
assumes that neither of appellant’s trial counsel learned of the charge until after the trial.

                                                14
the trial court’s decision was arbitrary or unreasonable. Id. Thus, a trial court
abuses its discretion in denying a motion for new trial only when no reasonable
view of the record could support the trial court’s ruling. Id.

       On appeal, appellant argues that failure to disclose Rios’s pending charge
entitles him to a new trial for two reasons: (1) it violated his constitutional
confrontation rights, see U.S. CONST. amend. VI; Tex Const. art. I § 10; and (2) it
violated his constitutional due process rights, see U.S. CONST. amend. XIV; Tex
Const. art. I § 19. We conclude that appellant is not entitled to a new trial.8

       First, we reject appellant’s argument that the State violated his confrontation
rights by failing to disclose Rios’s pending charge because confrontation rights do
not entitle a defendant to pretrial discovery of impeachment evidence. See Thomas
v. State, 837 S.W.2d 106, 111 (Tex. Crim. App. 1992). The right to confront
witnesses “is basically a trial right”; it does not “constitutionally compel[ ] pretrial
discovery.” Id. (adopting the plurality analysis of Pennsylvania v. Ritchie, 480
U.S. 39, 52–53 (1987) (plurality opinion)). “[T]he right . . . prevent[s] improper
restrictions on the types of questions that defense counsel may ask during cross-
examination,” but it “does not include the power to require pretrial disclosure of
any and all information that might be useful in contradicting unfavorable
testimony.” Ritchie, 480 U.S. at 52–53. We therefore conclude that the State’s
failure to inform appellant of Rios’s pending charge did not violate appellant’s
right to confront and cross-examine the witnesses against him.

       Second, appellant argues that the prosecutor’s failure to disclose the charge

       8
         We do not understand appellant to argue that he is entitled to a new trial based upon
newly discovered evidence under article 40.001 of the Texas Code of Criminal Procedure.
Appellant has never cited that provision, and his arguments and authorities rely exclusively upon
the constitutional rights discussed above.


                                               15
violated appellant’s due process rights under Brady v. Maryland, 373 U.S. 83
(1963). To establish a Brady violation, appellant must show that the prosecutor (1)
failed to disclose evidence (2) favorable to him and (3) that the evidence is
material. Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). Even if we
assume that appellant showed the first two elements of a Brady violation, we
conclude that he failed to show the materiality of Rios’s pending charge.

      In this context, favorable evidence is material if there is a reasonable
probability that, had the evidence been disclosed to the defense, the outcome of the
proceeding would have been different. Olivarez v. State, 171 S.W.3d 283, 290
(Tex. App.—Houston [14th Dist.] 2005, no pet.). A reasonable probability is a
probability sufficient to undermine confidence in the outcome of the trial. Id. The
mere possibility that undisclosed evidence may have helped the defense or affected
the trial’s outcome does not establish “materiality” in the constitutional sense. Id.
Whether the evidence is material is viewed in the context of the overall strength of
the State’s case. Id.

      Appellant contends that the non-disclosure of Rios’s pending charge
undermines confidence in the verdict because it prevented him from “expos[ing]
[Rios’s] desire to curry favor with the State” and from otherwise impeaching
Rios’s credibility. We disagree.

      To the extent Rios’s pending charge may have provided appellant additional
impeachment ammunition, the charge would have merely supplemented an already
considerable arsenal.9 Rios admitted at trial that he sold drugs. He also testified
that, when threatened, he retrieved a shotgun and waited in his truck with it until a

      9
         The State does not argue that Rios’s pending charge would have been inadmissible
impeachment evidence, so we assume, without deciding, that the evidence was admissible for
that purpose. Cf. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (“A prosecutor
does not have a duty to turn over evidence that would be inadmissible at trial.”).

                                            16
passing police car scared him. This evidence suggested that Rios’s character was
far from impeccable.

      In addition, other evidence directly contradicted Rios’s testimony on at least
two points. For example, Rios testified that he did not get his shotgun until after
he was threatened, but the third member of appellant’s group testified that a
member of Rios’s group had a shotgun during the initial fight. Rios also testified
that appellant may have threatened him, but a member of Rios’s group testified
that Rios never mentioned this at the time. Given the evidence of Rios’s poor
character and the multiple inconsistencies in his testimony, the potential marginal
impact of a pending criminal charge does not undermine our confidence in the
verdict. See Saldivar v. State, 980 S.W.2d 980, 486–87 (Tex. App.—Houston
[14th Dist.] 1998, pet ref’d) (where witness was impeached, evidence of unrelated
conviction not material). Because, under the circumstances of this case, appellant
has failed to demonstrate that evidence of Rios’s pending charge was material for
purposes of Brady, we overrule his final issue.

                                   CONCLUSION

      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                      /s/     J. Brett Busby
                                              Justice


Panel consists of Justices Frost, Brown, and Busby.

Do Not Publish — Tex. R. App. P. 47.2(b).




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