materiality standard in Texas

2026“The Court of Criminal Appeals has decreed that a materiality inquiry must be made in all cases involving a sufficiency of the evidence claim based on a variance between the indictment and the evidence.” Rogers v. State, 200 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (citing Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim.

2022Thus, “a materiality inquiry should be made in all cases, like this one, that involve a ‘sufficiency of the evidence claim based upon a variance between the indictment and the proof’ and . . . only a ‘material’ variance will render the evidence insufficient.” Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim.

2015Significantly, “[a] showing that the lost evidence might have been favorable does not meet the materiality standard.” Id. (emphasis in original); accord Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005); Hooper v. State, No. 03-08-00125-CR, 2009 Tex. App. LEXIS 7880 (Tex. App.—Austin Oct. 9, 2009) (not designated for publication).

2008See Lee, 893 S.W.2d at 87 (“A showing that the evidence might have been favorable does not meet the materiality standard.”); Hebert, 836 S.W.2d at 254 (same); Gamboa, 774 S.W.2d at 112 (same).

2025Sufficient Evidence Proved Jackson’s Instrument of Assault Next, Jackson complains that, although the indictment and charge allege that he assaulted Aguilar by hitting him with a “heavy duty flashlight,” there was no evidence the flashlight was, in fact, “heavy duty.” Much of our above analysis and discussion of variance applies to this issue, which we will overrule. 5 Gollihar “adopt[ed] the materiality test applied by many other courts including the Fifth Circuit.” Gollihar, 46 S.W.3d at 257 . 6 This is not to say the State did not prove that Aguilar was arresting Jackson for public intoxica

2016The materiality inquiry “requires a determination of whether the variance deprived the defendant of notice of the charges-or whether the variance subjects the defendant to the risk of later being prosecuted for the same offense.” Id. (citing Gollihar, 46 S.W.3d at 257 ).

2020“When evaluating whether the materiality standard is satisfied, the strength of the exculpatory evidence is balanced against the evidence supporting conviction.” Pena, 353 S.W.3d at 812 (citing Hampton v. State, 86 S.W.3d 603, 613 (Tex. Crim.

2020“When evaluating whether the materiality standard is satisfied, the strength of the exculpatory evidence is balanced against the evidence supporting conviction.” Pena, 353 S.W.3d at 812 (citing Hampton, 86 S.W.3d at 613 ).

2017App. 2011). . 473 U.S. 667, 682 , 105 S.Ct. 3375, 3383 , 87 L.Ed.2d 481 (1985) (referencing the materiality standard of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). .

2017App. 2011). . 473 U.S. 667, 682 , 105 S.Ct. 3375, 3383 , 87 L.Ed.2d 481 (1985) (referencing the materiality standard of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). .

2025Id. (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Circ. 2000)).

2003A materiality inquiry requires determining "whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime." Id . (quoting Sprick , 233 F.3d at 853 ); see also Fuller , 73 S.W.3d at 253 .

2017Lee v. State, 893 S.W.2d 80, 87 (Tex. App. – El Paso 1994, no pet.); see also Gelinas v. State, No. 08-09-00246-CR, 2015 Tex. App. LEXIS 8452 (Tex. 13 App.—El Paso Aug. 12, 2015, no pet.) (mem. op., not designated for publication).

2008See Lee, 893 S.W.2d at 87 (“A showing that the evidence might have been favorable does not meet the materiality standard.”); Hebert, 836 S.W.2d at 254 (same); Gamboa, 774 S.W.2d at 112 (same).

2008See Lee, 893 S.W.2d at 87 (“A showing that the evidence might have been favorable does not meet the materiality standard.”); Hebert, 836 S.W.2d at 254 (same); Gamboa, 774 S.W.2d at 112 (same).

2002AA showing that the lost evidence might have been favorable does not meet the materiality standard.@ Hebert v. State, 836 S.W.2d 252, 254 (Tex. App. CHouston [1st Dist.] 1992, pet. ref=d) (emphasis omitted); see also Gamboa v. State, 774 S.W.2d 111, 112 (Tex. App.CFort Worth 1989, pet. ref=d).

2017Regarding the materiality inquiry, “the question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” Id. at 289-90 , quoting Kyles, 514 U.S. at 434 .

2016It is important to bear in mind that the materiality inquiry “is not a sufficiency of evidence test.” Id.

2015Under Brady v. Maryland, “the State violates a defendant's right to due process if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630 (2012) (citing Brady, 373 U.S. at 87). “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627, 630 (2012.

2015Under Brady v. Maryland, “the State violates a defendant's right to due process if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630 (2012) (citing Brady, 373 U.S. at 87). “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627, 630 (2012.

2019Under this assumption, Fierro must show that there is a “reasonable likelihood” that, but for the State’s reliance on false evidence, his capital murder trial would have ended in an acquittal.26 We will also assume in Fierro’s favor that his confession should not be used against him in the materiality analysis.27 Finally, although we will discuss each alleged falsehood sequentially, for materiality purposes we will consider 23 E.g., Chavez, 371 S.W.3d at 220–21 (Price, J., dissenting). 24 Compare Chavez, 371 S.W.3d at 206–07 (“The present standard for materiality of false testimony is whether

2019Under this assumption, Fierro must show that there is a “reasonable likelihood” that, but for the State’s reliance on false evidence, his capital murder trial would have ended in an acquittal.26 We will also assume in Fierro’s favor that his confession should not be used against him in the materiality analysis.27 Finally, although we will discuss each alleged falsehood sequentially, for materiality purposes we will consider 23 E.g., Chavez, 371 S.W.3d at 220–21 (Price, J., dissenting). 24 Compare Chavez, 371 S.W.3d at 206–07 (“The present standard for materiality of false testimony is whether

2014Also citing Carlson, False or Suppressed Evidence: Why a Need for the Prosecutorial Tie?, 1969 Duke LJ. 1171, 1187-88, for the proposition that a "more liberal approach” that permits relief to be granted when the prosecutor has unknowingly used false evidence "would threaten only those final judgments which merit unsettlement” so long as the rule is ”[h]edged with the appropriate standards requiring the defendant to demonstrate materiality”); Case, 144 N.M. at 25-26 , 183 P.3d at 910-11 (adopting a heightened materiality requirement due to concerns about the eroding effects of the passage of t

2014Also citing Carlson, False or Suppressed Evidence: Why a Need for the Prosecutorial Tie?, 1969 Duke LJ. 1171, 1187-88, for the proposition that a "more liberal approach” that permits relief to be granted when the prosecutor has unknowingly used false evidence "would threaten only those final judgments which merit unsettlement” so long as the rule is ”[h]edged with the appropriate standards requiring the defendant to demonstrate materiality”); Case, 144 N.M. at 25-26 , 183 P.3d at 910-11 (adopting a heightened materiality requirement due to concerns about the eroding effects of the passage of t

2019We held one complaining of the State’s failure to preserve evidence in its possession must demonstrate that the evidence was both favorable and material to his case, and that a mere showing it “might have been favorable does not meet the materiality standard.” Id.

2010“A showing that the lost evidence might have been favorable does not meet the materiality standard.” Jackson, 50 S.W.3d at 589 .

2025According to Morales, this evidence contained “potential exculpatory value”; “could contain discrepancies or additional details not in the formal reports, which could have been crucial for impeachment purposes”; “had the potential to impeach [the 5 complainant]’s testimony, provide alternative explanations for the events, or reveal procedural errors by law enforcement”; and “could have led to a different trial outcome.” However, “[a] showing that the lost evidence might have been favorable does not meet the materiality standard.” Salazar, 185 S.W.3d at 92 (emphasis added); see also Guzman, 539

2015Significantly, “[a] showing that the lost evidence might have been favorable does not meet the materiality standard.” Id. (emphasis in original); accord Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005); Hooper v. State, No. 03-08-00125-CR, 2009 Tex. App. LEXIS 7880 (Tex. App.—Austin Oct. 9, 2009) (not designated for publication).

2015The duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed.121 Therefore, a defendant must demonstrate that the lost evidence was both favorable and material to his case.122 A showing that the lost evidence might have been favorable does not satisfy the materiality requirement.123 Further, to establish that the failure to preserve the evidence constitutes a violation of due process or due course of law rights, appellant must demonstrate that the police acted in bad faith.124 119 Id. at 606-07 . 120 Id. at 607 . 1

2015The duty to preserve evidence is limited to evidence that possesses an exculpatory value that was apparent before the evidence was destroyed.121 Therefore, a defendant must demonstrate that the lost evidence was both favorable and material to his case.122 A showing that the lost evidence might have been favorable does not satisfy the materiality requirement.123 Further, to establish that the failure to preserve the evidence constitutes a violation of due process or due course of law rights, appellant must demonstrate that the police acted in bad faith.124 119 Id. at 606-07 . 120 Id. at 607 . 1

2026See Mustang Pipeline Co.) Inc. v. Driver Pipeline Co.) Inc., 134 S.W.3d 195, 199 (Tex. 2004).

2022The supreme court recognizes five factors relevant to the materiality determination; most notably here, “the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived.” Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 199 (Tex. 2004) (per curiam).1 1 The materiality factors include: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be dep

2026“The Court of Criminal Appeals has decreed that a materiality inquiry must be made in all cases involving a sufficiency of the evidence claim based on a variance between the indictment and the evidence.” Rogers v. State, 200 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (citing Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim.

2023Such a variance will be considered “fatal,” and thus render the evidence insufficient, only when it is “material.” A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare an adequate defense, or (2) would subject him to the risk of being prosecuted twice for the same offense. 26 Rogers v. State, 200 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (internal citations omitted).

2026In its unanimous decision, the Court observed that “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.” Id. at 195 ; see also D’Agostino v. ev3, Inc., 845 F.3d 1, 7 (1st Cir. 2016) (“The fact that [the government] has not denied reimbursement for [the device] in the wake of [the relator’s] allegations casts serious doubt on the materiality of the fraudulent representations that [the relator] alleges.”).

2025The False Claims Act is not an all-purpose antifraud statute, or a vehicle for punishing garden- variety breaches of contract or regulatory violations.”); Malouf v. State, 656 S.W.3d 402 , 407 (Tex. App.—El Paso 2022, pet. filed) (noting that the TMFPA is modeled on the FCA). - 33 - largely be withdrawn from the market even when FDA itself sees no reason to do so.” 164 Speaking directly to what the State is seeking to do in this case, that court went on to explain that there was a lack of materiality to technical CGMP compliance “because payment is conditioned on FDA approval, which has been g

2026However, when it comes to defining materiality, the Act and the FCA statutory regimes bear sufficient similarity to render federal caselaw on the FCA’s materiality requirement persuasive. 32 In Escobar, the U.S. Supreme Court considered how courts should “evaluat[e] materiality under” the FCA. 579 U.S. at 194-95 .

2025Escobar, 579 U.S. 176 , 194 (2016); (“The materiality standard is demanding.

2025Keeter, 74 S.W.3d at 37 (“Nevertheless, because we construed the rule to incorporate the old statute’s materiality requirement, no substantive change in the law has been effected.”). 10 were able to make their own assessment of Russell’s demeanor as well as determine the credibility of Johnson’s testimony.

2014Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim.

2025“When evaluating whether the materiality standard is satisfied, the strength of the exculpatory evidence is balanced against the evidence supporting conviction.” Pena, 353 S.W.3d at 812 .

2020“When evaluating whether the materiality standard is satisfied, the strength of the exculpatory evidence is balanced against the evidence supporting conviction.” Pena, 353 S.W.3d at 812 (citing Hampton v. State, 86 S.W.3d 603, 613 (Tex. Crim.

2017App. 2011). . 473 U.S. 667, 682 , 105 S.Ct. 3375, 3383 , 87 L.Ed.2d 481 (1985) (referencing the materiality standard of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). .

2017App. 2011). . 473 U.S. 667, 682 , 105 S.Ct. 3375, 3383 , 87 L.Ed.2d 481 (1985) (referencing the materiality standard of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). .

2001The Court, albeit in dicta, noted the materiality requirement, citing Stevens, supra, and reiterated that "only a material variance is fatal [and a] variance between the charging instrument and the proof at trial is material only if it operated to the defendant's surprise or prejudiced his rights." Id. at 246. [9] That is, the State had proven the commission of aggravated assault with a deadly weapon, but had not proven its commission with a "Luger" instead of a "Ruger," as alleged in the indictment. [10] In Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982)(opinion on second motion for reh'g

2001The Court, albeit in dicta, noted the materiality requirement, citing Stevens, supra, and reiterated that “only a material variance is fatal [and a] variance between the charging instrument and the proof at trial is material only if it operated to the defendant's surprise or prejudiced his rights.” Id. at 246. .

2012McDonald, 863 S.W.2d at 543 ; Hebert v. State, 836 S.W.2d 252, 254 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd).

1996McDonald, 863 S.W.2d at 543 ; Hebert v. State, 836 S.W.2d 252, 254 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd).

2025See Glossip, 604 U.S. at 248 (concluding false testimony provided by witness was material where testimony was only direct evidence of guilt of capital murder and jury’s assessment of witness’s credibility was necessarily determinative; explaining false testimony also supported prosecution theory, featured prominently in opening and closing statements, that witness was 15 The Supreme Court describes the materiality standard as applicable if there is “any reasonable likelihood.” Glossip, 604 U.S. at 246 (emphasis added) (quoting the leading false testimony case of Napue v. People of State of Ill

2019“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Napue, 360 U.S. at 269 .

2020Carsner v. State, 444 S.W.3d 1 , 2–3 (Tex. Crim.

2016Carsner v. State, 444 S.W.3d 1, 2 (Tex. Crim.

2019Under this assumption, Fierro must show that there is a “reasonable likelihood” that, but for the State’s reliance on false evidence, his capital murder trial would have ended in an acquittal.26 We will also assume in Fierro’s favor that his confession should not be used against him in the materiality analysis.27 Finally, although we will discuss each alleged falsehood sequentially, for materiality purposes we will consider 23 E.g., Chavez, 371 S.W.3d at 220–21 (Price, J., dissenting). 24 Compare Chavez, 371 S.W.3d at 206–07 (“The present standard for materiality of false testimony is whether

2012Nor could he have brought the claim.”). 25 See Ghahremani, 332 S.W.3d at 481-83 . 26 See Ex parte Napper, 322 S.W.3d 202, 242 (Tex. Crim.