                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00050-CR

KENNETH WAYNE REAGAN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                      From the County Court at Law No. 2
                            Johnson County, Texas
                         Trial Court No. M200801166


                          MEMORANDUM OPINION


      Kenneth Reagan appeals from a judgment of conviction by a jury for the offense

of driving while intoxicated.   TEX. PEN. CODE ANN. §49.04 (Vernon 2005). Reagan

complains that the trial court erred by denying his motion for new trial because of a

Brady violation, that the trial court erred by denying his motion for mistrial because of

the admission of extraneous offenses, and that he received ineffective assistance of

counsel. Because we find no reversible error, we affirm the judgment of the trial court.
Brady Violation

         Reagan complains that the trial court erred by denying his motion for new trial

because the State failed to produce a videotape recording as it was required to pursuant

to the holding by the United States Supreme Court in Brady v. Maryland. See Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L .Ed. 2d 215 (1963). Reagan does not dispute

that he did not file a motion requesting that the State produce any such evidence;

however, he contends that he had an agreement with the State to produce any such

evidence and that he relied on the State’s “open file” discovery policy. Reagan and his

trial counsel were allowed to view a videotape that was in the State’s possession prior

to trial; however, they viewed only the first half of the videotape depicting the

occurrences at the jail after Reagan’s arrest. The second half of the tape depicted the

scene on the side of the road from the arresting officer’s in-car video. The second half of

the videotape contained the field sobriety tests conducted on Reagan by the arresting

officer and contained a statement regarding two prior offenses made by a dispatcher.

Standard of Review

         We review the trial court’s denial of a motion for new trial for an abuse of

discretion. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). When

reviewing a trial court's denial of a motion for new trial, we do not substitute our

judgment for that of the trial court, but rather, we consider whether the trial court’s

decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App.

1995).    Thus, if there is conflicting evidence on an issue of fact, we defer to the trial



Reagan v. State                                                                      Page 2
court’s credibility determination. Id.; Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim.

App. 1997).

       A prosecutor has an affirmative duty to turn over material, favorable evidence to

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

v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).            To determine whether a

prosecutor’s actions violate a defendant's due process rights, we employ a three-part

test. We consider whether: (1) the prosecutor failed to disclose evidence; (2) the

evidence is favorable to the accused; and (3) the evidence is material (i.e., whether a

reasonable probability exists that the result of the proceeding would have been different

if the evidence had been disclosed to the defense). Wyatt v. State, 23 S.W.3d 18, 27 (Tex.

Crim. App. 2000); Little, 991 S.W.2d at 866. When, as here, the disclosure of evidence

occurs at trial, the issue becomes whether the tardy disclosure prejudiced the defendant.

Id.

       The preliminary question before the trial court was whether or not the

prosecutor had, in fact, failed to disclose evidence. Without the failure to disclose

evidence, there is no Brady violation. See Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.

App. 2006). An open-file policy is generally sufficient to satisfy Brady as well. Id. at 407.

In this case, trial counsel for Reagan testified that he and Reagan had watched a

videotape together which the State had provided. Trial counsel testified that he did not

go beyond the intoxilyzer room portion of the tape to identify whether there was

anything else on the tape.      There was a delay of two to three minutes between

segments.

Reagan v. State                                                                        Page 3
       Counsel for the State testified that the tape offered and admitted into evidence

was the same tape which was made available to Reagan.               The Johnson County

Attorney’s office has an open file discovery policy.       The State denied that it had

withheld any evidence from Reagan. The videotape did, however, erroneously indicate

on its face that it only contained evidence from the jail and not from the in-car video.

There was further testimony that the videotape had not been altered in any manner

since it was provided to the prosecutor.

       Here, the trial court could have determined the evidence in question was

disclosed to Reagan and his trial counsel prior to the trial and that the State did not fail

to disclose evidence. Additionally, the trial court could have concluded Reagan did not

establish that the videotape was favorable to him and material. See Webb v. State, 232

S.W.3d 109, 115 (Tex. Crim. App. 2007) (quoting Hampton v. State, 86 S.W.3d 603, 612

(Tex. Crim. App. 2002)) ("Under Brady, the defendant bears the burden of showing that,

in light of all the evidence, it is reasonably probable that the outcome of the trial would

have been different had the prosecutor made a timely disclosure.").

       The driver and passenger of the truck hit by Reagan and the officer who arrested

Reagan on the scene testified that Reagan had blood-shot eyes, smelled of alcohol, and

was acting like he was intoxicated. The trial court could have concluded that even if the

defense had been told specifically to watch that portion of the videotape, there was no

reasonable probability that the result of the proceeding would have been different. Id.

(“The mere possibility that an item of undisclosed evidence might have helped the

defense, or might have affected the outcome of the trial, does not establish materiality in

Reagan v. State                                                                       Page 4
the constitutional sense.”). Based on the record presented at the motion for new trial

hearing, we conclude the trial court did not abuse its discretion in determining Reagan

did not establish a Brady violation. We overrule issue one.

Denial of Mistrial

       Reagan complains in issue two that the trial court erred by denying his motion

for mistrial after the videotape from the side of the road was played because it

contained inadmissible references to extraneous prior offenses. The videotape was

played in its entirety to the jury after having been admitted in evidence without

objection by Reagan. After the tape concluded, Reagan approached and asked for a

hearing outside of the presence of the jury at which time he objected to the introduction

of the audio portion regarding any extraneous offenses.

       A timely objection must be made in order to preserve an error in the admission

of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). The objection

should be made as soon as the ground for objection becomes apparent. Id. However, if

it was not possible to make a timely objection and the evidence is actually admitted, the

defense must object as soon as the objectionable nature of the evidence became

apparent and move to strike the evidence. Ethington v. State, 819 S.W.2d 854, 858 (Tex.

Crim. App. 1991). Either way, Reagan did not object to the reference to any extraneous

offenses until after the videotape had played in its entirety. This was not timely. We

overrule issue two.




Reagan v. State                                                                    Page 5
Ineffective Assistance of Counsel

       Reagan complains that he received ineffective assistance of counsel because his

trial counsel did not view the second half of the videotape that depicted the events that

transpired on the side of the road and on the ride to the jail, and that this failure

constituted ineffective assistance of counsel. He further contends that the failure to

object to the video once it was introduced and the failure to request a continuance

constituted ineffective assistance of counsel. The videotape contained a statement made

by a dispatcher over the arresting officer’s radio during the ride to the jail that Reagan

had two prior DWI convictions in 1983, which Reagan contends were inadmissible. The

videotape also portrayed the field sobriety testing that was conducted at the scene of

the accident, which Reagan concedes was admissible.

       To prevail on an ineffective-assistance claim, Reagan must prove (1) counsel’s

representation fell below the objective standard of reasonableness; and (2) there is a

reasonable probability that, but for counsel’s deficiency, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). A reasonable probability is a probability sufficient to undermine confidence in

the outcome. Ex parte Ellis, 233 S.W.3d 324, 330-31 (Tex. Crim. App. 2007). When

making this determination, any constitutionally deficient acts or omissions will be

considered in light of the totality of the evidence before the judge or jury. Id. at 331.

       A hearing was held on Reagan’s motion for new trial alleging ineffective

assistance and Reagan’s trial counsel testified as to his actions. The State concedes that

Reagan v. State                                                                        Page 6
Reagan has met the first prong of Strickland as it relates to Reagan’s trial counsel’s

failure to view the roadside portion of the videotape and his further failure to request a

continuance at any of the times the State made reference to the tape or when that

portion of the tape began. The State disclosed in its opening statement that the jury

would see a videotape of what occurred at the scene on the side of the road.

Additionally, when the State began its questions to authenticate the tape, the witness

stated that there was a videotape from the roadside and that it had been included on the

tape. There was no objection or other comment by Reagan’s trial counsel at either

juncture in the trial. As discussed above, the objection to that portion of the videotape

was not lodged until after the videotape was viewed in its entirety.

       We will assume without deciding that Reagan has met the first prong of

Strickland. We must therefore determine whether there is a reasonable probability that,

but for Reagan’s trial counsel’s alleged deficiency, the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). At

trial, Reagan’s trial counsel extensively cross-examined the officer who administered

the field sobriety testing both at the scene of the arrest and at the jail regarding Reagan’s

performance on the testing as well as the officer’s skill in conducting the tests. Other

witnesses who were involved in the accident testified as to Reagan’s actions at the

scene. Reagan’s trial counsel had the offense report that itemized what had transpired

at the scene and was the same as what was depicted on the videotape prior to trial.

Viewing the totality of the evidence before the jury, we do not find that there is a

Reagan v. State                                                                        Page 7
reasonable probability that without this alleged deficiency by Reagan’s trial counsel the

result would have been different. We overrule issue three.

Conclusion

       We find that there was no Brady violation.        Further, we find that the issue

regarding the denial of the mistrial was not properly preserved at trial. We find that

while Reagan’s trial counsel’s representation may have fallen below the objective

standard of reasonableness, we do not believe that there is a reasonable probability that

the result would have been different without the alleged deficiency of Reagan’s trial

counsel. We affirm the judgment of the trial court.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed April 28, 2010
Do not publish
[CR25]




Reagan v. State                                                                    Page 8
