                                MEMORANDUM OPINION
                                        No. 04-11-00391-CR

                                        Tara WILKERSON,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 7, Bexar County, Texas
                                     Trial Court No. 287954
                            Honorable Eugenia Wright, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 30, 2012

AFFIRMED

           Appellant Tara Wilkerson appeals her conviction for misdemeanor assault and raises two

issues on appeal: (1) the trial court erred when it denied Tara’s Brady motion to produce the

prosecutor’s notes and refused to conduct an in camera inspection of the notes, and (2) the trial

court violated Texas Rule of Evidence 615 by failing to compel the State to produce the

prosecutor’s notes. We affirm the trial court’s judgment.
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                                          BACKGROUND

       Darrell Wilkerson was divorcing his wife Tara, but they continued living together.

During an argument, Tara threw a phone at Darrell which hit him in the back. Darrell walked to

David Herrera’s home nearby, and Herrera saw Tara repeatedly strike Darrell. Officer Michelle

Lewis responded to Darrell’s 911 call. She interviewed Darrell and Herrera, saw a mark under

Darrell’s right eye and redness on his shoulder. Officer Lewis found Tara in her home, observed

her condition, asked her about Darrell’s allegations, and arrested her.

       Before trial, the court granted Tara’s Brady motion and ordered the State to disclose

Brady information to the defense. The State insisted it had no Brady information and that the

prosecutor’s notes from witness interviews were privileged work product. The trial court denied

Tara’s motion to produce the prosecutor’s notes.        During trial, the State gave Tara Brady

information that it only learned of during trial. The jury found Tara guilty of misdemeanor

assault, and the court assessed a one-year probated sentence. Tara appeals the trial court’s

judgment.

                                          BRADY CLAIM

       In her first issue, Tara asserts that the trial court erred by refusing to order the State to

disclose the prosecutor’s notes from Darrell’s interviews and by refusing to conduct an in camera

inspection of the notes. She claims the notes were Brady information because they may have

aided her in impeaching Darrell’s testimony.

A. Disclosing, Inspecting Alleged Favorable Evidence

       The State must disclose to the defense evidence that is favorable to the defendant, Brady

v. Maryland, 373 U.S. 83, 87 (1963), including evidence that impeaches a State’s witness,

United States v. Bagley, 473 U.S. 667, 676 (1985); Harm v. State, 183 S.W.3d 403, 406, 408



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(Tex. Crim. App. 2006). The State must also disclose material evidence that is otherwise

protected by the work product privilege if the defendant can first show the court that the evidence

exists, it is within the State’s control, and it contains Brady information. See Bagley, 473 U.S. at

675; Ex parte Miles, 359 S.W.3d 647, 665–66, 670 (Tex. Crim. App. 2012); see also United

States v. Agurs, 427 U.S. 97, 109–10 (1976) (recognizing that the State “may not ‘suppress

substantial material evidence’” but rejecting the notion that the State must sua sponte disclose its

entire investigative file such as witness interview notes (quoting In re Imbler, 387 P.2d 6, 14

(Cal. 1963))); Ransonette v. State, 550 S.W.2d 36, 40 (Tex. Crim. App. 1976) (“[W]e know of

no constitutional obligation of the trial court to peruse the prosecutor’s file for exculpatory

evidence in the absence of a specific request supported by some showing that such evidence

exists.”). To establish a Brady violation, the defendant must show that (1) the State suppressed

evidence, (2) the suppressed evidence favors the defendant, and (3) “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); accord Harm, 183

S.W.3d at 406. A Brady violation denies the defendant due process and is reversible error.

Harm, 183 S.W.3d at 406; see Hampton, 86 S.W.3d at 612.

       We review a trial court’s denial of a request for an in camera review of putative Brady

information for an abuse of discretion. See Proctor v. State, 319 S.W.3d 175, 185 (Tex. App.—

Houston [1st Dist.] 2010, pet. struck); Page v. State, 7 S.W.3d 202, 207–08 (Tex. App.—Fort

Worth 1999, pet. ref’d) (en banc). However, a defendant “may not require the trial court to

search through the [State’s files] without first establishing a basis for [her] claim that it contains

material evidence.”     See Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987); accord

Ransonette, 550 S.W.2d at 40; Page, 7 S.W.3d at 206–07.



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B. Alleged Brady Violations

       Tara asserts that her due process rights were violated when the trial court refused to order

the State to produce its prosecutor’s notes from Darrell’s interviews.

       1. Prosecutor’s Notes

       Tara asserts that the prosecutor’s notes from Darrell’s interviews are actually witness

statements that could contain evidence that would help her impeach Darrell’s testimony and

obtain her acquittal. The State insists that the prosecutor’s notes are the prosecutor’s written

impressions from Darrell’s interviews. See TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West

Supp. 2011) (excluding, generally, counsel’s work product and investigator’s notes from

discovery); cf. Williams v. State, 940 S.W.2d 802, 804–05 (Tex. App.—Fort Worth 1997, pet.

ref’d) (rejecting an assertion that prosecutor’s notes were witness statements). The State asserts

that Darrell did not review, sign, or swear to the notes, the notes are privileged work product, and

irrespective of that privilege, there is no Brady information in the notes.

       2. Analysis

       To successfully argue a Brady violation, Tara must show that the State suppressed

evidence it had that was favorable to her defense and such suppression probably affected the

outcome of her trial. See Miles, 359 S.W.3d at 665. She alleges that the prosecutor’s notes are

actually Darrell’s witness statements which may contain Brady information. Contra TEX. CODE

CRIM. PROC. ANN. art. 39.14(a); Agurs, 427 U.S. at 109–10; Williams, 940 S.W.2d at 804–05.

However, she provides no evidence or testimony that Darrell signed, adopted, or approved any of

the prosecutor’s notes. Cf. Pondexter v. State, 942 S.W.2d 577, 582 (Tex. Crim. App. 1996)

(rejecting the defendant’s assertion that the prosecutor’s notes were “statements” under the

evidentiary rule because the witness had not signed or adopted the notes); Williams, 940 S.W.2d



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at 804–05.    Further, Tara does not show that the prosecutor’s notes likely contain Brady

information and she provides no statute or case law that shows the prosecutor’s notes in this case

are witness statements. Cf. Williams, 940 S.W.2d at 804–05. In fact, Williams indicates the

opposite. See id. (rejecting the defendant’s assertions that prosecutor’s notes that the witnesses

had reviewed and verbally approved were witness statements). Moreover, before trial, the State

repeatedly asserted it had no Brady information, but when the State learned of possible Brady

information just after the charge was read and again during Darrell’s cross-examination, it

immediately disclosed to Tara Darrell’s two previous statements. Thus, Tara has failed to show

there was any impeachment evidence known to the prosecution that it should have produced but

did not. See Hampton, 86 S.W.3d at 612; Williams, 940 S.W.2d at 806.

       Having failed to show that the State suppressed any Brady information at all, Tara cannot

show that the alleged evidence was favorable to her or that it was material. See Agurs, 427 U.S.

at 109–10 (“The mere possibility that an item of undisclosed information might have helped the

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

constitutional sense.”); Miles, 359 S.W.3d at 666.

       Tara also failed to show the trial court that the prosecutor’s notes contained any Brady

information that would compel the court to conduct an in camera inspection. Tara argued to the

trial court that “if [Darrell’s] statements are contradictory” then she was entitled to the notes.

But the trial court was not required to order the State to produce the prosecutor’s notes or inspect

them in camera based solely on Tara’s speculation that the notes might contain impeachment

evidence. See Page, 7 S.W.3d at 206 (“We will not order the State to produce information under

Brady based merely on Appellant’s speculation that the requested information contained

exculpatory evidence.”). Therefore, the trial court did not violate Tara’s due process rights when



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it denied her request for disclosure of the prosecutor’s notes and did not abuse its discretion

when it denied her request for an in camera inspection. We overrule Tara’s first issue.

                                 TEXAS RULE OF EVIDENCE 615

       In her second issue, Tara asserts that the trial court violated Texas Rule of Evidence 615

by refusing to order the State to produce the prosecutor’s notes.

A. Standard of Review

       We review a trial court’s determination of “whether a requested writing constitutes a

[witness] statement” for an abuse of discretion. Williams, 940 S.W.2d at 805; accord Jordan v.

State, 897 S.W.2d 909, 918 (Tex. App.—Fort Worth 1995, no pet.).

B. Prosecutor’s Notes

       Assuming arguendo that Tara preserved her claim of error that the trial court improperly

denied her the prosecutor’s notes under Rule 615, Tara’s complaint still fails.

       1. Evidentiary Rule

       In a criminal trial, after the complaining witness testifies, the defendant may move and

the court must order the State to produce “any statement of the [complaining] witness that is in

[the State’s] possession and that relates to the subject matter concerning which the witness has

testified.” See TEX. R. EVID. 615; Pondexter, 942 S.W.2d at 582 (citing the former rule). A

witness statement is defined in subsection (f) as:

       (1) a written statement made by the witness that is signed or otherwise adopted or
           approved by the witness; [or]
       (2) a substantially verbatim recital of an oral statement made by the witness that
           is recorded contemporaneously with the making of the oral statement and that
           is contained in a stenographic, mechanical, electrical, or other recording or a
           transcription thereof[.]




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TEX. R. EVID. 615(f)(1)–(2); Guilder v. State, 794 S.W.2d 765, 767 (Tex. App.—Dallas 1990, no

pet.). If the requested writing is not a statement, the State does not have to produce it. See TEX.

R. EVID. 615; Williams, 940 S.W.2d at 805; Jordan, 897 S.W.2d at 918.

       2. Analysis

       It is undisputed that the prosecutor’s notes were handwritten information describing the

State’s interviews with Darrell. Nevertheless, Tara insists that the prosecutor’s notes are actually

Darrell’s witness statements under Rule 615(f)(2). See TEX. R. EVID. 615. The State responds

that the prosecutor’s notes were merely the State’s “summary of the complainant’s expected

testimony” and they do not meet the definition of statements under the Rule. See Williams, 940

S.W.2d at 804–05; Guilder, 794 S.W.2d at 768. The State asserts that Darrell never signed,

adopted, or approved the prosecutor’s notes, and the record supports the State’s assertion. We

agree that the prosecutor’s notes were not statements under Rule 615. See TEX. R. EVID.

615(f)(1); Williams, 940 S.W.2d at 805; Guilder, 794 S.W.2d at 768. Thus, the trial court did

not abuse its discretion by overruling Tara’s Rule 615 motion. See Williams, 940 S.W.2d at 805;

Jordan, 897 S.W.2d at 918.

                                          CONCLUSION

       We conclude that the trial court did not abuse its discretion by refusing an in camera

inspection of the prosecutor’s notes and that Tara Wilkerson’s due process rights were not

violated. We also conclude that the prosecutor’s notes were not witness statements subject to

Texas Rule of Evidence 615. Therefore, we affirm the trial court’s judgment.

                                                 Rebecca Simmons, Justice

DO NOT PUBLISH




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