Keeter v. State , 2005 Tex. Crim. App. LEXIS 521 ( 2005 )

KELLER, P. J.,

concurring joined by COCHRAN, J.

I join the Court’s opinion but write separately to respond to some of the comments in the dissenting opinion. The dissent claims that a “first-year law student” would recognize that a Brady claim is presented by the statement, “Evidence establishing the defendant’s innocence was withheld by a material prosecution witness.” But Brady claims apply only to agents of the government,¹ and the complaining witness in this case was not a government agent. That distinction is the essence of the difference between suppression-of-exeulpatory-evidenee claims under Brady v. Maryland² and freestanding actual innocence claims due to the malfeasance of a witness under Ex parte Elizondo.³

The dissent next criticizes the Court for noting that the trial court did not mention Brady when it overruled the motion for new trial. The dissent claims that the Court’s remarks are “disingenuous” because the Texas Rule of Appellate Procedure 21.8(b) does not permit the trial court to discuss or comment on the evidence.⁴ But whether or not the trial court’s comments were proper, those comments do indicate that the trial court was concerned with a newly discovered evidence claim rather than a Brady claim. Moreover, the rule prohibits commenting on the “evidence” but does not prohibit a trial court from specifying what claims it ruled upon. So there is no impropriety in this Court looking to the trial court’s comments to try to ascertain whether the claim appellant now urges was before the trial court.

The dissent further contends that “there is no doubt the parties and the trial judge fully understood that a Brady claim was being litigated” because the “State filed a letter in the appellate court in which specific references to Brady were made” (emphasis mine). But the presence of a letter in the appellate court does not show that the trial court was on notice that a Brady claim was being urged. Since appellant raised a Brady claim in the court of appeals, a response to that claim would be expected.

The dissent says that the failure to cite Brady in the written motion for new trial or say the words “Brady v. Maryland ” at the hearing should not override the fact that a Brady claim was apparent from the context and vigorously litigated by the parties. I agree that no talismanic formula was required. Appellant could have said the State had suppressed exculpatory evidence, or something similar. He never did. The dissent’s conclusion that the Brady claim was “vigorously litigated” is without foundation. A newly discovered evidence claim was vigorously litigated, but there is no evidence in the record that a Brady claim was litigated at all.

1 .Strickler v. Greene, 527 U.S. 263, 280-281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Schlup v. Delo, 513 U.S. 298, 313-314, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (discussing difference between freestanding innocence claims and procedural constitutional violations such as that found in Brady v. Maryland ).

2 . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

3 . 947 S.W.2d 202 (Tex.Crim.App.1996).

4 . Rule 21.8(b) provides in relevant part: “In ruling on a motion for new trial, the court must not summarize, discuss, or comment on evidence.”