This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

rules on failure to comply (CCP Art. 39.14. Discovery)

• Exclusion of evidence was not an appropriate sanction for state's violation of a discovery order where trial court erred in finding state's conduct to be a "willful" violation of the order and in excluding the untimely disclosed evidence on that basis. The three situations relied on by trial court to find "willfulness" did not support that conclusion: (1) Trial court found on two separate occasions prosecutor failed to properly respond to defense request for discovery where prosecutor believed he had been assigned to another court and was no longer on def's case; while prosecutor consciously chose course of conduct, was no evid that he intended to violate order or harm defense; while prosecutor may have been extremely negligent or even reckless with respect to the result of his actions, this conduct did not rise to level of willfulness. (2) Timing of final delivery of material to defense by fax on day defense counsel was leaving town to attend CLE course did not show willfulness; record did not indicate timing was anything more than negligence on the part of state; was not reasonable to infer that the prosecutor's decision to fax the information at that particular time (less than a week after learning about the CLE course) was a strategic and purposeful effort to thwart the defense in its preparation of its case; trial court's characterization of the event as "gamesmanship at the expense of defendant's constitutional rights to a fair trial" was not supported by the record. (3) Trial court should not have relied on state's response to the court's ruling at the conclusion of the hearing on the matter, in which prosecutor stated he had made what he himself described as "grievous error[s] and mistake[s]"; state's objection to trial court's ruling, which the court specifically asked to hear, was in no way relevant to the nature of state's conduct when it violated the discovery order; there was no evidence that the prosecutor's request to proceed was calculated specifically to deny def his constitutional right to a speedy trial or effective assistance of counsel. State v Larue (November 10, 2004, No. 985-03)

no reversible error after discovery granted (CCP Art. 39.14. Discovery)

• It was not abuse of discretion to deny motions for continuance, on claims state did not comply with discovery, where prosecution responded by saying it had provided all info it had under its open file policy, trial judge denied the motion and informed def that if "there is a witness that testifies that you have not - or, that they call that you have not had an opportunity to interview, I will take that up at that particular time," and def made no such claim of prejudice during trial. Ross v State (May 5, 2004, No. 74,459)

• It was not error to admit state's DNA evidence over objection based on claim state violated a discovery order by failing to timely turn over new statistical calculations of the frequency of the DNA profile of the blood in the population, where the state informed def of the recalculations on the evening of the day before the state began presentation of its DNA evidence; when def objected to the tardy disclosure, the trial court asked how much time the defense desired to look over the new calculations, and the defense expert replied he would need an hour or two to look at it; and the court granted def that additional time to review the information before the state presented its statistical evid. There was no indication in the record whether the state's serologist's failure to recalculate the frequency statistics earlier was done willfully or was merely an oversight. Def did not explain how he was harmed by the state's failure to perform the recalculations earlier; def was afforded ample time for his expert to review the recalculations; and def was able to cross-examine the state's witnesses with the new results. Def was in no way prejudiced by the state's failure to comply with the discovery order. Jackson v State, 17 S.W.3d 664 (May 17, 2000)

failure to disclose favorable evidence - presenting issue (Non-Statutory cases on Discovery)

• Where def on appeal asserted Brady error in context of complaint that the trial court erred in denying his motion for new trial, he must have raised the Brady complaint at some point during the motion for new trial proceedings to preserve the complaint for appellate review. He was required to make the trial court and the State aware of his Brady complaint before raising it on appeal. The trial court cannot be said to have erred in denying a motion for new trial on a basis that was not presented to it. Keeter v State (April 6, 2005, No. PD-1012-03)

• Def failed to preserve Brady complaint for review on appeal. No merit to contention it was preserved by evid presented during hearing on def's motion for new trial where def did not mention Brady in his motion or during the hearing on the motion, and did not include any Brady-related cases in his post-hearing submission. Also, a Brady claim requires that def show by a preponderance of the evidence that evidence was withheld, that it was favorable to the defense, and that the evidence was material, while record supported conclusion that neither the state nor the trial court understood that def was raising a Brady claim. Also, the trial court's order denying the motion did not mention Brady. Keeter v State (April 6, 2005, No. PD-1012-03)

• On claim that the trial court erred in failing to grant a continuance or a mistrial due to the State’s tardy disclosure of exculpatory evidence, contention that the State’s tardy disclosure violated his due process right to the disclosure of exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963) was procedurally defaulted. State disclosed the evid five days before the beginning of trial testimony. Def was alerted at that time of the need to investigate, and defense counsel stated that such an investigation was in fact begun after the State’s disclosure. But def did not request a continuance before testimony began, nor did he request a continuance before he rested his case-in-chief. The only new information learned by def during the State’s rebuttal was that the State first possessed the information much earlier than the State had earlier represented to def. Such new information about when the State knew what it knew did not have any tendency to produce leads that had before been unknown to the defense team. Def acted untimely by waiting to request a continuance until after jeopardy had attached and both sides had rested their cases-in-chief. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

failure to disclose favorable evidence - insuff record on appeal (Non-Statutory cases on Discovery)

• No merit to contention that state suppressed a secret deal with witness in exchange for his testimony, where def relied solely on evidence in the trial record and did not raise the claim in a motion for new trial. Evidence presented at trial did not prove there was a deal, but merely showed that state took various measures to protect witness' safety so that he would not be killed before he testified. To whatever extent evidence at trial might support existence of a deal, that evidence was before the jury. Def failed to show that state suppressed exculpatory evidence. Ortiz v State (September 25, 2002, No. 73,692)

failure to disclose favorable evidence - rules: due process (Non-Statutory cases on Discovery)

• To prevail under Brady, def must show not only a failure to timely disclose favorable evidence. He must also show he was prejudiced by the tardy disclosure. Little v State, 991 S.W.2d 864 (May 19, 1999)

failure to disclose favorable evidence - rules: character of evid (Non-Statutory cases on Discovery)

• Favorable evidence is any evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal. It includes both exculpatory and impeachment evidence. Exculpatory evidence is testimony or other evidence which tends to justify, excuse or clear the defendant from alleged fault or guilt. Impeachment evidence is that which is offered to dispute, disparage, deny, or contradict. Little v State, 991 S.W.2d 864 (May 19, 1999)

failure to disclose favorable evidence - rules: review on appeal (Non-Statutory cases on Discovery)

• The three-pronged test for reversible error for a Brady violation is entirely different from the constitutional harmless error standard set out in Rule 44.2(a). 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. 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 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. (Cause remanded for reconsideration of Brady error issue.) Hampton v State (September 25, 2002, No. 499-01)

no error presented by failure to disclose evidence (Non-Statutory cases on Discovery)

• It was not error to deny motion for new trial (in pros for indecency with a child) on claim state failed to disclose favorable evidence consisting of Child Protective Services records that allegedly indicated that, in the past, victim had made unfounded allegations of sexual abuse and had engaged in inappropriate sexual behavior. (1) CPS was not agent of the prosecution: The reports were created in the course of a non-criminal investigation that was unrelated to def, but within the duties of CPS to protect the welfare and safety of the children of Texas. In addition, the CPS reports significantly predated the allegations against def, thus CPS could not have been working with the prosecution or at its behest. (2) Even assuming CPS acted in a law-enforcement capacity or as a state agent and that it willfully or inadvertently concealed the records, def was unable to satisfy the remaining requirements necessary to establish a Brady violation where the CPS records indicated they were neither favorable nor material to def's case. Harm v State (January 25, 2006, No. PD-1270-04)

failure to disclose favorable evidence - no error: evid known to def (Non-Statutory cases on Discovery)

• No Brady error occurred by failure of state to disclose to def a letter written by def to his mother-in-law in which he said he was "sorry for what he has done." Because he was aware of the existence of, as well as the contents of, the letter because he wrote it, it was not within the Brady rule. Hayes v State (September 11, 2002, No. 73,830)

failure to disclose favorable evidence - no error presented by delayed disclosure (Non-Statutory cases on Discovery)

• No merit to contention that the trial court violated Brady v. Maryland, 373 U.S. 83 (1963), by not requiring the State to produce an exculpatory statement by the murder victim's mother until after she had been called as a witness, and that def was harmed because he could not use this statement to cross-examine her. The information at issue was never in state's possession, but was in an investigator's file in the pathologist's office. The investigator's report, which was made prior to the pathologist's receipt of the victim's body, stated that the "next of kin denies boyfriend ever hurt deceased or would sexually assault him." Even if this was evidence the State was required to turn over under Brady as favorable to the accused, def still could not show the outcome of the proceedings would have been different had the statement been disclosed, where during trial, the victim's mother testified on direct examination that, prior to the instant crime, she trusted def and did not believe def would have hurt her child. This information is materially the same as that contained in the pathologist's report. The defense was able to cross-examine the victim's mother with the knowledge that she previously trusted def with the care of her child. Therefore, there was no reasonable probability that, had the complained-of evidence been disclosed to the defense, the outcome of the proceeding would have been different. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• No merit to Brady claim where def did not show that the State’s tardy disclosure prejudiced him; def did not show a reasonable probability that, had the evidence been disclosed to the defense earlier, the result of the proceeding would have been different. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

• Where def was on trial for DWI, and after chemist testified that def’s blood alcohol concentration was 0.13, but before cross-examination, state told def’s attorney that the chemist had lost the paperwork from his tests, state’s disclosure was in time for def to use it effectively at trial. Since def received the information about the lost graph in time to put it to effective use at trial, he failed to show a Brady violation. (Since def did not object to the admission of the blood test results or attempt to take the chemist on voir dire after the loss of the graph was disclosed, he could not show that the outcome of the proceeding would have been different had that fact been disclosed earlier. And he could not show that the trial was unfair, since he had every opportunity to object to the blood test results before and after the state disclosed the fact that the graph had been lost. Def received the information in time to put it to effective use at trial, under his theory. He just neglected to do so.) Little v State, 991 S.W.2d 864 (May 19, 1999)

failure to disclose favorable evidence - reversible error presented by failure to disclose evidence (Non-Statutory cases on Discovery)

• Habeas corpus relief granted where state had an affirmative constitutional duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose and failed to disclose certain material evidence that impeached testimony of state's only eyewitness, whose credibility was a crucial issue in def's trial. Ex parte Richardson (March 13, 2002, No. 74,221)

no error (Non-Statutory cases on Discovery)

• It was not error to allow state's expert witness (X) to testify, over claim state untimely disclosed its intention to call X. Court's discovery order required the state to disclose all witnesses ten days before voir dire commenced, but state announced it would call X four days after voir dire concluded. The state informed def as soon as it anticipated calling X as a witness. The prosecutor announced on the first day of individual voir dire the possibility that the state might call X to testify at the punishment phase. Defense counsel spoke with X on the telephone later that week, and X confirmed that the state had contacted him but that he was still unsure whether he would testify. After meeting with X on the following day, prosecutor called defense counsel from Dallas to inform the defense that she had decided to call X. Defense counsel testified that, although X's name had not appeared on the witness list, the state's disclosure provided him with three weeks notice that X might testify. Court of criminal appeals concluded the state did not act in bad faith. In addition, def could have reasonably anticipated X's testimony in light of the state's announcement on the first day of the individual voir dire that it might call X to testify at punishment. Wood v State, 18 S.W.3d 642 (May 24, 2000)

various discovery matters (Non-Statutory cases on Discovery)

• In capital case it was not error to quash def's subpoenas to district attorneys and county judges from several different counties to testify in connection with motion in which he alleged that the Texas death penalty statute was unconstitutional because it failed to provide a consistent statewide method for determining in which cases the death penalty would be sought. The State has discretion to seek the death penalty, and this discretion is not unconstitutional. Def was not entitled to subpoena district attorneys and county judges and question them regarding the exercise of prosecutorial discretion which has been held to be constitutional. Russeau v State (June 29, 2005, No. AP-74,466)

• It was not error to deny def's motion for mistrial asserted during competency hearing, on claim he had subpoenaed state's expert to produce all information of any nature whatsoever relating to def, but that witness failed to bring his "raw testing data" to the competency hearing, and claim that the raw data was "crucial" to def's ability to cross-examine witness and to a determination of an explanation for the differing conclusions of the state's and the defense's experts. Assuming "raw data" was covered by def's subpoena and should have been produced, mistrial would have been an inappropriate remedy in these circumstances, where def made no showing that the material was unobtainable, and did not request a continuance to allow witness an opportunity to obtain the material, a much less drastic remedy. Wood v State, 18 S.W.3d 642 (May 24, 2000)