Brady violation in Texas

2025On April 10th, the date jury selection had been scheduled, defense counsel filed a motion to set aside the indictment for a violation of Uhl’s speedy-trial right and argued during a pretrial hearing that there was a potential Brady issue concerning Father’s suicide, which “develop[ed] the possibility of an alternative perpetrator.” See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring State to disclose on request material evidence favorable to defendant). 5 In its order, the trial court noted that two civil jury trials were held during this period. 3 Counsel also argued that the State had v

2023I agree with the majority that no Brady violation occurred here, because the cellphone and its contents were immaterial to the outcome of the proceeding.1 See Brady v. Maryland, 373 U.S. 83, 87 (1963).

2024A. Applicable Law “A Brady violation occurs when the state suppresses, willfully or inadvertently, evidence favorable to appellant.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.

2024A. Applicable Law “A Brady violation occurs when the state suppresses, willfully or inadvertently, evidence favorable to appellant.” Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.

2026“Thus, a Brady claim requires proof that the sought-after evidence was both material and favorable to the defendant such that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.” Id. (citing Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim.

2026“Thus, a Brady claim requires proof that the sought-after evidence was both material and favorable to the defendant such that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.” Id. (citing Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim.

2020See Little, 991 S.W.2d at 866 ; McGee v. State, No. 05-13-00285-CR, 2014 WL 1022463 , at *2 (Tex. App.—Dallas Mar. 13, 2014, pet. ref'd) (mem. op., not designated for publication) (discussing Brady violation allegation on evidence admitted during the punishment phase of trial).

2017See Little, 991 S.W.2d at 865-67 (holding State’s failure to inform defendant that expert had lost paperwork from defendant’s blood alcohol test until after expert testified, but before defendant cross-examined expert, did not constitute Brady violation because defendant received information in time to use it effectively at trial).

2023United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.”).

2023United States v. Bagley, 473 U.S. 667, 676 (1985) (“Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.”).

2023Therefore, we conclude that Guerra has not met his burden to show that a Brady violation occurred.11 See Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

2023Therefore, we conclude that Guerra has not met his burden to show that a Brady violation occurred.11 See Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

2019See Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.— Austin 2002, pet. ref’d) (“[W]hen previously withheld evidence is disclosed at trial, the defendant’s failure to request a continuance waives any Brady violation.”).

2018See Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.—Austin 2002, pet. ref’d) (“[W]hen previously withheld evidence is disclosed at trial, the defendant’s failure to request a continuance waives any Brady violation.”); see also Painter v. State, No. 11-15-00318-CR, 2017 WL 6559653 , at *7 (Tex. App.—Eastland Dec. 21, 2017, pet. filed) (mem. op., not designated for publication) (“[W]hen previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance.

2024See State v. DeLeon, 971 S.W.2d 701, 706 (Tex. App.—Amarillo 1998, pet. ref’d) (“If the State waits until trial before disclosing Brady material and the defendant fails to request a continuance, the defendant waives any error resulting from the Brady violation.” (citations omitted)).

2024See State v. DeLeon, 971 S.W.2d 701, 706 (Tex. App.—Amarillo 1998, pet. ref’d) (“If the State waits until trial before disclosing Brady material and the defendant fails to request a continuance, the defendant waives any error resulting from the Brady violation.” (citations omitted)).

2025“The failure to request one waives any Brady violation, as well as any violation of a discovery order.” Young, 183 S.W.3d at 706 (quoting Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—San Antonio 1999, no pet.)).

2018A defendant’s failure to request a continuance waives any Brady violation.”) (citation omitted); Lewis v. State, No. 04-12-00428-CR, 2014 WL 1494593 , at *9 (Tex. App.—San Antonio Apr. 16, 2014, no pet.) (mem. op., not designated for publication) (“[W]hen there is delayed disclosure of evidence favorable to the defense during trial, the defendant’s failure to request a continuance waives any Brady violation.”); Futch v. State, No. 10-11-00283-CR, 2013 WL 3770952 , at *9 (Tex. App.—Waco July 18, 2013, pet. ref’d) (mem. op., not designated for publication) (holding that defendant waived his Brad

2020In order to establish a Brady violation, Strickland must demonstrate the evidence withheld was “favorable.” Favorable evidence is that which, if disclosed and used effectively, “may make the difference between conviction and acquittal.” Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim.

2020In order to establish a Brady violation, Strickland must demonstrate the evidence withheld was “favorable.” Favorable evidence is that which, if disclosed and used effectively, “may make the difference between conviction and acquittal.” Ex parte Miles, 359 S.W.3d 647, 665 (Tex. Crim.

2015See and compare, Michealwicz v. State,186 S,W.3d 601,613-16(Tex.App.-Austin 2006 rehg ovrld, pet refd)(motion for ex parte trial court hearing to inspect police report for alleged exculpa tory or material evidence value, intended to invoke Brady protections, was proper procedural device to invoke on direct appeal), with, Perkins v. State, 902 S.W.2d 88,102 ,supp.opinion, 905 S.W.2d 452,453 (Tex.App.-El Paso 1995)(claim of ex pert witness's perjury about scientific study never intorduced in trial attached to appeal rehearing motion; holding under Rochelle v. State, 791 S.W.2d 121 ,124- 25(Tex.C

2015See State v. Fury, 186 S.W.3d 67 , 73–74 (Tex. App.––Houston [1st Dist.] 2005, pet. ref’d) (defendant’s failure to ask for continuance upon disclosure of Brady material at trial is a situation in which the defendant either waived any Brady error or essentially conceded that any Brady error did not prejudice him); see also State v. DeLeon, 971 S.W.2d 701, 706 (Tex. App.––Amarillo 1998, pet. ref’d); Brindle v. State, No. 05–10–01258–CR, 2012 WL 1150533 , at *3 (Tex. App.––Dallas Apr. 9, 2012, no pet.) (mem. op., not designated for publication).

2019“Additionally, we require that the evidence central to the Brady claim be admissible in court.” Ex parte Miles, 359 S.W.3d at 665 (citing Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim.

2019“Additionally, we require that the evidence central to the Brady claim be admissible in court.” Ex parte Miles, 359 S.W.3d at 665 (citing Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim.

2025“The failure to request one waives any Brady violation, as well as any violation of a discovery order.” Young, 183 S.W.3d at 706 (quoting Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—San Antonio 1999, no pet.)).

2018App. 2005) (holding failure to raise alleged Brady error as separate complaint during hearing on motion for new trial waived error), cert. denied, 546 U.S. 852 (2005); Williams v. State, 995 S.W.2d 754 , 761–62 (Tex. App.—San Antonio 1999, no pet.) (holding failure to request continuance based on alleged Brady violation waives error).

2024App. 2012) (“Even if the prosecutor was not personally aware of the evidence, the State is not relieved of its duty to disclose because “the State” includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case.”) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)); see also Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (a Brady violation occurs when the government fails to turn over evidence that is known only to the police and not the prosecutor). 83 Id.

2024App. 2012) (“Even if the prosecutor was not personally aware of the evidence, the State is not relieved of its duty to disclose because “the State” includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case.”) (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)); see also Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (a Brady violation occurs when the government fails to turn over evidence that is known only to the police and not the prosecutor). 83 Id.

2023The third part of the Brady test requires us to determine whether evidence contained on the phone was material, “i.e., created a probability sufficient to undermine the confidence in the outcome of the proceeding.” See Thomas, 841 S.W.2d at 404 .

2023The third part of the Brady test requires us to determine whether evidence contained on the phone was material, “i.e., created a probability sufficient to undermine the confidence in the outcome of the proceeding.” See Thomas, 841 S.W.2d at 404 .

2023Very good.” 11 Nonetheless, “[w]hen Brady material is disclosed at trial, the defendant’s failure either to object to the admission of the evidence on this basis or to request a continuance waives error or at least indicates that the delay in receiving the evidence was not truly prejudicial.” Rubio v. State, 534 S.W.3d 20, 27 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d) (quoting Perez v. State, 414 S.W.3d 784, 790 (Tex. App.— Houston [1st Dist.] 2013, no pet.) (internal quotations omitted)); Cohen v. State, 966 S.W.2d 756, 763 (Tex. App.—Beaumont 1998, pet. ref’d) (“A defendant who fai

2023Very good.” 11 Nonetheless, “[w]hen Brady material is disclosed at trial, the defendant’s failure either to object to the admission of the evidence on this basis or to request a continuance waives error or at least indicates that the delay in receiving the evidence was not truly prejudicial.” Rubio v. State, 534 S.W.3d 20, 27 (Tex. App.—Corpus Christi–Edinburg 2017, pet. ref’d) (quoting Perez v. State, 414 S.W.3d 784, 790 (Tex. App.— Houston [1st Dist.] 2013, no pet.) (internal quotations omitted)); Cohen v. State, 966 S.W.2d 756, 763 (Tex. App.—Beaumont 1998, pet. ref’d) (“A defendant who fai

2025P. 33.1 (requiring a complaint to be made to trial court “by a timely request, objection or motion”); Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007, no pet.) (holding that defendant must both request continuance and present Brady complaint in motion for new trial to preserve complaint for appellate review); see also Pena, 353 S.W.3d at 807 (holding Brady issue preserved in motion for new trial in case where “defense counsel discovered the audio portion of the videotape after the completion of final arguments and after the jury had retired to deliberations”) (emphasis added);

2025App. 2005) (holding appellant was required to preserve his “particular Brady claim for appellate review” and failed to do so); Jones v. State, 234 S.W.3d 151, 158 (Tex. App.— San Antonio 2007, no pet.) (recognizing Brady claims are subject to error preservation rules).

2015Counsel's failure to move to dismiss the indictment and seek a directed verdict of not guilty is ineffective assistance of counsel and violates Defendant's Sixth Amendment to effective assistance of counselL 4.' Whether the State committed a Brady violation in the primary case; _ ln light of _E_Z§_.p§§§§.Richardsonz 70 S.W.3d 865 (Tex.Crim.App. 2002), the Opinion issued by the Honorable Cochan, Judge, that Court said, to prevail upon a post-conviction writ of habeas corpus, applicant bears the burden of providing by a preponderence of the evidence, the facts that would entitled him to relief.

2013Moreover, in order to prevail on a Brady claim, Bell must show: (1) the State failed to disclose evidence; (2) the withheld evidence is favorable to Bell; and (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.” Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim.

2023But to establish a Brady violation, a defendant must show: “(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the defendant; and (3) the suppressed evidence is material.” Id. (first citing Strickler v. Greene, 527 U.S. 263 , 281–82 (1999); and then citing Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.

2023But to establish a Brady violation, a defendant must show: “(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the defendant; and (3) the suppressed evidence is material.” Id. (first citing Strickler v. Greene, 527 U.S. 263 , 281–82 (1999); and then citing Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim.

2015Wyatt, 23 S.W.3d at 27 (citing United States v. Bagley, 473 U.S. 667, 676 (1985)); Johnston v. State, 917 S.W.2d 135, 138 (Tex. App.—Fort Worth 1996, pet. ref’d) (Brady violation occurs when a prosecutor fails to disclose evidence that may impeach the credibility of a State’s witness where the witness’s credibility is material to the accused’s guilt or innocence).

2015In evaluating whether a Brady violation occurred, it is first necessary to determine whether the withheld evidence was “material,” i.e., whether there is “a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.” Wyatt, 23 S.W.3d at 27 (quoting Bagley, 473 U.S. at 682 ).

2011See Hayes, 85 S.W.3d at 815 (“In Havard v. State, this Court held that the Brady rule did not apply when the appellant was already aware of the information.”).

2011See Hayes, 85 S.W.3d at 815 (“In Havard v. State, this Court held that the Brady rule did not apply when the appellant was already aware of the information.”).

2013Figueroa’s failure to 3 See also Alcorta v. State, No. 14-10-00827-CR, 2011 WL 3672091 , at *6 (Tex. App.—Houston [14th Dist.] Aug. 23, 2011, pet. ref’d) (mem. op., not designated for publication) (holding that appellant waived any Brady error related to untimely production of documents after jury verdict by failing to request a continuance of the hearing); Balca v. State, No. 01-95-00482-CR, 2000 WL 1593790 , at *3 (Tex. App.—Houston [1st Dist.] Oct. 26, 2000, pet. ref’d) (not designated for publication) (concluding that appellant waived any error resulting from untimely disclosure of alleged

2012Evans told Tracy “she [was] missing money in her 7 When evidence withheld in violation of Brady is disclosed at trial, the defendant’s “failure to request a continuance waives any Brady violation, as well as any violation of a discovery order.” Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.—Texarkana 2002, pet. ref’d); see Smith v. State, 314 S.W.3d 576 , 585 n.3 (Tex. App.—Texarkana 2010, no pet.); Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007, no pet.).

2018P. 33.1(a); see also Pena, 353 S.W.3d at 806–07; Wilson, 7 S.W.3d at 146 (applying the Rule 33.1 error preservation requirements to a Brady claim). 51 See Wilson, 7 S.W.3d at 146 . 52 Trial Tr. at 137–67.

2018P. 33.1(a); see also Pena, 353 S.W.3d at 806–07; Wilson, 7 S.W.3d at 146 (applying the Rule 33.1 error preservation requirements to a Brady claim). 51 See Wilson, 7 S.W.3d at 146 . 52 Trial Tr. at 137–67.

2026App. 1999) (noting Brady claim, like most errors, must be preserved at trial to be raised on appeal); Keeter v. State, 175 S.W.3d 756 , 759–60 (Tex. Crim.

2025P. 33.1(a) (stating to preserve error for appeal record must show complaint was made to trial court and trial court ruled on complaint or refused to rule); Pena, 353 S.W.3d at 809 (“Overall, the record of the motion for new trial hearing reflects that the Brady issue was preserved for appeal.”); Keeter v. State, 175 S.W.3d 756, 761 (Tex. Crim.

2019See Brady, 373 U.S. at 87 , 83 S. Ct. at 1196-97 ; Ex parte Miles, 359 S.W.3d at 665 ; Ex parte Kimes, 872 S.W.2d at 703 ; Dalbosco, 978 S.W.2d at 238 ; see also TEX.

2019See Brady, 373 U.S. at 87 , 83 S. Ct. at 1196-97 ; Ex parte Miles, 359 S.W.3d at 665 ; Ex parte Kimes, 872 S.W.2d at 703 ; Dalbosco, 978 S.W.2d at 238 ; see also TEX.

2015P. 47.2(b). 5 See also Palmer v. State, 902 S.W.2d 561, 565 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (holding State’s disclosure of impeachment evidence during its presentation of evidence did not violate Brady rule because appellant received information in time to present it to the jury); Givens v. State, 749 S.W.2d 954, 957 (Tex. App.—Fort Worth 1988, pet. ref’d) (“[A]ppellant discovered the statement early enough to make use of it at trial; it was introduced into evidence and read in presence of the jury.”). 14

2013Palmer v. State, 902 S.W.2d 561, 565 (Tex.App.-Houston [1st Dist.] 1995, no pet.); see also Little v. State, 991 S.W.2d 864, 867 (Tex.Crim.App.1999) (reasoning that to prevail on a Brady claim, defendant must show that State’s tardy disclosure prejudiced defendant).

2008Id.; see also Staten v. State, 919 S.W.2d 493, 498 (Tex. App.–Fort Worth 1996, pet. ref’d) (explaining that no Brady violation exists unless it is shown that the defendant was actually denied access to the allegedly favorable material).

2008State , 919 S.W.2d 493, 498 (Tex. App.-Fort Worth 1996, pet. ref'd) (explaining that no Brady violation exists unless it is shown that the defendant was actually denied access to the allegedly favorable material).

2021On the one hand, in Massey v. State, we applied the “indispensable to the State’s case” standard that we articulated in McBride to a situation in which the defendant failed to carry his burden to demonstrate “good cause” for discovery.110 On the other hand, in Ex parte Miles, we applied the traditional Brady standard set out in Quinones, but we did so to note that Article 39.14’s exclusion of privileged material does not trump the 108 Agurs, 427 U.S. at 109–10 (holding that “the m ere possibility that an item of undisclosed inform ation m ight have helped the defense, or m ight have affected t

2021On the one hand, in Massey v. State, we applied the “indispensable to the State’s case” standard that we articulated in McBride to a situation in which the defendant failed to carry his burden to demonstrate “good cause” for discovery.110 On the other hand, in Ex parte Miles, we applied the traditional Brady standard set out in Quinones, but we did so to note that Article 39.14’s exclusion of privileged material does not trump the 108 Agurs, 427 U.S. at 109–10 (holding that “the m ere possibility that an item of undisclosed inform ation m ight have helped the defense, or m ight have affected t