Anthony Jason Kelly v. State , 2013 Tex. App. LEXIS 11759 ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-12-00074-CR
____________________
ANTHONY JASON KELLY, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the County Court at Law No. 4
Montgomery County, Texas
Trial Cause No. 11-265675
________________________________________________________ _____________
OPINION
In this appeal, among other issues, we are asked to determine whether the
trial court committed error by concluding that Anthony Jason Kelly was required
to exhibit a turn signal while travelling on Old Hempstead Road and before turning
to continue onto Old Hempstead Road in Montgomery County, Texas. Kelly also
contends that the trial court should have suppressed evidence that he refused to
voluntarily provide blood or breath specimens, and to provide evidence obtained
1
with a search warrant, a blood test. In a separate issue, Kelly argues that certain
statements included in the probable cause affidavit used to obtain a search warrant
should not be considered in assessing whether the magistrate reasonably concluded
that probable cause existed for the warrant to issue. Finally, Kelly contends the
State withheld a statement made by the state trooper who stopped him, in violation
of Brady v. Maryland, 373 U.S. 83 (1963).
We conclude that Kelly was required to signal his turn from Old Hempstead
Road onto Old Hempstead Road; that the trial court acted within its discretion by
denying his motions to suppress; that the trial court did not improperly consider the
statements at issue in the probable cause affidavit in reaching its conclusions
regarding the validity of the search; and that the statement of the state trooper the
State refused to produce does not contain material exculpatory or impeachment
evidence such that it was required to be produced.
Facts
While approaching a stop sign governing northbound traffic on Old
Hempstead Road, Trooper Jarad Gray observed a truck that was southbound on
Old Hempstead Road take “a right onto Old Hempstead” just before the road the
truck was on became Goodson Road. According to Trooper Gray, who was
approaching a stop sign at the intersection where the truck driven by Kelly turned,
2
he did not see a blinking signal as the truck “turned through the intersection.”
After turning around to follow the truck, Trooper Gray noticed the truck’s rear
license plate was partially obscured. When Trooper Gray stopped the truck, he
noticed that the tailgate of the truck was down, and that the tailgate was the object
that had obstructed his view of the truck’s rear license plate. A videotape admitted
during the hearing on Kelly’s motion to suppress does not show that Kelly signaled
before he turned from Old Hempstead Road to continue on Old Hempstead Road.
Shortly after turning around, Trooper Gray stopped Kelly. Kelly asked why
he was being stopped, and he informed Trooper Gray that he was a police officer.
Trooper Gray smelled the odor of an alcoholic beverage, and asked Kelly to step
out of the truck. Trooper Gray detected six out of six clues on the HGN test that he
gave to Kelly. Kelly refused Trooper Gray’s request for further field sobriety
testing.
Based on his investigation, Trooper Gray concluded that Kelly was
intoxicated and arrested him. Kelly refused Trooper Gray’s request to provide a
breath specimen, even though Trooper Gray read the various statutorily required
warnings about the consequences of such a refusal. Although Kelly received a
written copy of the warnings in his property at the jail, Trooper Gray did not hand
Kelly a written copy of the warnings during the stop. While Kelly was at the jail,
3
based on Trooper Gray’s affidavit, a magistrate issued a search warrant that
authorized the police to obtain a sample of Kelly’s blood.
Prior to trial, Kelly moved to suppress all testimony and physical evidence
obtained from the investigation. According to Kelly’s motion to suppress, Trooper
Gray did not have probable cause to conduct the stop. In a second motion, Kelly
moved to suppress the fact that he refused to voluntarily give Trooper Gray a
breath sample, arguing that he would have given a breath specimen “had the proper
warnings been administered to him[.]” In a third motion, Kelly moved to suppress
any evidence seized under the search warrant, arguing that it had been issued
without probable cause. The trial court denied each of Kelly’s motions to suppress.
Kelly also filed a Brady motion, in which he requested the State to produce
the substance of any oral statement of any person containing information favorable
to the defendant and to produce any information tending to adversely affect the
credibility of any person the State intended to call as a witness. At the hearing on
Kelly’s Brady motion, Kelly asked the trial court to conduct an in camera review
of a statement that Trooper Gray had given the Texas Rangers in connection with
the Rangers’ investigation of the manner Trooper Gray handled Kelly’s arrest. The
State argued that the request was a fishing expedition because Trooper Gray’s
statement was not exculpatory and because nothing in the statement could be used
4
for impeachment. The trial court declined to inspect Trooper Gray’s statement in
camera and denied Kelly’s request that the statement be produced.
After the trial court denied Kelly’s pre-trial motions, to carry out the terms
of a plea bargain, Kelly pled guilty to driving while intoxicated, a misdemeanor.
The trial court certified Kelly’s right to appeal the matters raised by his written
motions.
Standard of Review-Motions to Suppress
We first address Kelly’s issues that assert the evidence in his case should
have been suppressed, issues one, three, four, and five. In reviewing a trial court’s
rulings on motions to suppress, we afford almost total deference to the trial court’s
determination of facts, if those facts are supported by the record. State v. Duran,
396 S.W.3d 563, 570 (Tex. Crim. App. 2013). Since the State prevailed on the
motions at issue in this appeal, we “view the trial judge’s factual findings in the
light most favorable” to the trial court’s conclusion not to suppress the evidence
that resulted from the investigation of the stop. See id. at 571. The trial court’s
application of search and seizure law to the facts in a case are reviewed de novo,
and an appellate court is to affirm the trial court’s ruling if the record reasonably
supports the ruling and the ruling is correct on any theory of law applicable to the
case. See id.
5
Reasonable Suspicion For Stop
Before making a traffic stop, an officer must have reasonable suspicion that
some crime was, or is about to be, committed. Derichsweiler v. State, 348 S.W.3d
906, 914 (Tex. Crim. App. 2011). When an officer observes a driver commit a
traffic offense, reasonable suspicion exists to justify stopping the driver. See
Arizona v. Johnson, 555 U.S. 323, 331 (2009). Determining whether evidence from
a stop was properly admitted generally turns on “‘whether the officer’s action was
justified at its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.’” U.S. v. Sharpe,
470 U.S. 675, 675-76 (1985) (applying Terry v. Ohio, 392 U.S. 1 (1968)).
In his first issue, Kelly argues that he was not required to signal because he
turned and continued on the same road he was on, Old Hempstead Road. No stop
sign required Kelly to stop before turning at the intersection in issue. Kelly also
argues that Trooper Gray could not legally stop him for having an obscured license
plate when the object blocking the plate on his truck was the tailgate and not an
object attached or displayed on the license plate.
In his appeal, Kelly has not challenged the trial court’s finding of fact that he
failed to signal at the intersection at issue. Instead, he contends he was not legally
required to signal because, based on the configuration of the roadway, he did not
6
make a turn. 1 In this case, the parties do not disagree about the physical
characteristics of the roadway; instead, the parties dispute whether the law required
a driver to signal given those physical characteristics. Given that the question is
whether Kelly was legally obligated to signal and that the configuration of the
roadway is not disputed, Kelly’s first issue presents a question of law and is
reviewed de novo. See Robinson v. State, 377 S.W.3d 712, 722-23 (Tex. Crim.
App. 2012).
Texas law requires that “[a]n operator intending to turn a vehicle right or left
shall signal continuously for not less than the last 100 feet of movement of the
vehicle before the turn.” Tex. Transp. Code Ann. § 545.104(b) (West 2011).
“Turn” is not defined by statute, but the Texas Court of Criminal Appeals has
defined “turn” “in the context of driving,” to mean “to change directions--to turn
1
Although we resolve the issue as a matter of law, we note that at the
suppression hearing, Kelly described the movement of his truck as a turn. He
testified as follows:
Q. All right. Did you signal your turn?
A. Yes, sir.
Q. Okay. And why did you signal if you never left Old Hempstead?
A. Excuse me?
Q. Why did you signal?
A. Because I was making a right hand oriented turn.
The trial court chose to believe Trooper Gray’s testimony that Kelly failed to
signal.
7
the vehicle from a direct course of the roadway.” Mahaffey v. State, 316 S.W.3d
633, 639 (Tex. Crim. App. 2010).
Based on the exhibits depicting the intersection at issue, we estimate that as
Kelly was travelling in a southeasterly direction on Old Hempstead Road, he
turned approximately fifty-five to seventy degrees to proceed in a southwesterly
direction on Old Hempstead Road. A stop sign requires that traffic travelling in a
northeasterly direction on Old Hempstead Road stop before turning on the part of
Old Hempstead Road on which Kelly was travelling. However, Kelly would not
have been required to stop had he continued travelling the same direction on Old
Hempstead Road, which then becomes Goodson Road. Thus, by choosing to turn
and proceed in a southwesterly direction on Old Hempstead Road, Kelly turned off
the direct course of the road that he was on even though the name of the road did
not change; he also changed directions.
Kelly cites Trahan v. State, 16 S.W.3d 146, 147 (Tex. App.—Beaumont
2000, no pet.), which states that a ninety degree turn is the type of turn the driver is
required by statute to signal. See Tex. Transp. Code Ann. § 545.104(a) (West
2011). However, Trahan concerned a vehicle exiting from an interstate highway,
which requires significantly less movement than the turn at issue here;
additionally, since the movement in Trahan was not a ninety degree turn, our
8
comment that the statute contemplated a ninety degree turn is dicta. Moreover, we
agree with our sister court’s statement that a turn need not be ninety degrees to
require a signal. See Reha v. State, 99 S.W.3d 373, 376 (Tex. App.—Corpus
Christi 2003, no pet.) (holding that a turn made “between sixty-five and seventy
degrees” required a signal).
We conclude that section 545.104(b) of the Texas Transportation Code,
providing that “[a]n operator intending to turn a vehicle right or left shall signal
continuously for not less than the last 100 feet of movement of the vehicle before
the turn,” required Kelly to signal his turn. The trial court’s finding that Kelly
failed to signal is not challenged. Consequently, Trooper Gray witnessed a
violation of a traffic law that gave him reasonable suspicion to stop Kelly’s truck.
See Derichsweiler, 348 S.W.3d at 914; see also Johnson, 555 U.S. at 331. We
overrule Kelly’s first issue.2
Statutory Warnings Regarding Breath Specimen
In issue three, Kelly complains that Trooper Gray failed to provide him with
a written copy of the statutory warnings that address the consequences of refusing
to provide a specimen, and that Trooper Gray failed to request that he sign the
2
Because Trooper Gray’s observation of a traffic violation justified the stop,
we need not address Kelly’s argument regarding the allegedly obscured license
plate. See Tex. R. App. P. 47.1.
9
form to indicate his refusal. See Tex. Transp. Code Ann. § 724.015(1), (2) (West
Supp. 2012). 3 Kelly contends that had he been given a written copy of the
warnings, he would have provided a specimen.
When an officer has arrested a person for operating a motor vehicle while
intoxicated, the Texas Transportation Code requires the officer to inform the
person, orally and in writing, that refusing “to submit to the taking of the specimen
. . . may be admissible in a subsequent prosecution[,]” and that refusing “to submit
to the taking of the specimen” will result in the automatic suspension of the
person’s license, “whether or not the person is subsequently prosecuted as a result
of the arrest, for not less than 180 days[.]” Tex. Transp. Code Ann. § 724.015(1),
(2). The purpose of requiring officers to provide a person who has been arrested
with statutory warnings orally and in writing is “to ensure that a person who
refuses to give a requested specimen does so with a full understanding of the
consequences.” Nebes v. State, 743 S.W.2d 729, 730 (Tex. App.—Houston [1st
Dist.] 1987, no pet.). However, “evidence is not ‘obtained . . . in violation’ of a
provision of law if there is no causal connection between the illegal conduct and
the acquisition of the evidence.” Gonzales v. State, 67 S.W.3d 910, 912 (Tex.
3
Although the statute requiring the warnings at issue has been amended, the
amended statute requires the same warnings as the statute that applied when Kelly
was arrested. Therefore, we cite to the current version of the statute.
10
Crim. App. 2002) (citations omitted). To prove a causal connection between
Trooper Gray’s failure to provide the statutory warnings in writing and Kelly’s
refusal to provide a specimen, Kelly was required to show that Trooper Gray’s
omissions in following the requirements of the statute were the reasons that he
refused to consent to providing the requested specimen. See State v. Woehst, 175
S.W.3d 329, 333 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (applying causal
connection test to officer’s providing a driver arrested for DWI a factually
inaccurate warning).
Kelly does not dispute that Trooper Gray orally read the required warnings
to him before he refused Trooper Gray’s request for a breath specimen. Kelly also
testified that he had been a police officer for twenty-one years, confirmed that he
had been certified in standardized field sobriety tests, agreed that he had conducted
DWI investigations, and explained that he had been trained on how to properly
provide the required warnings. Kelly testified that he heard Trooper Gray when
Gray read the statutory warnings to him. In its findings of fact, the trial court found
that Kelly “was able to understand the substance of the DIC-24” statutory warning
while Trooper Gray “read them out loud.” In its conclusions of law, the trial court
found that “[a]ny mistake in advising [Kelly] of consequences under [the] DIC-24
was harmless because [Kelly] was already aware of its contents.” Although Kelly
11
testified that he would not have refused Trooper Gray’s request had he been
provided a written copy of the statutory warnings and asked to sign them, the trial
court—as the finder of fact—chose not to believe his testimony. See State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Trial courts decide the facts, and we are required to view the trial court’s
factual findings in suppression cases in the light most favorable to the trial court’s
conclusion. See Duran, 396 S.W.3d at 571. When viewed in the light most
favorable to the trial court’s ruling, the trial court’s finding that Kelly understood
the substance of the statutory warnings is supported by the record. Based on the
evidence before it, the trial court had the discretion to reject Kelly’s claim that a
causal connection existed between Trooper Gray’s omissions and Kelly’s refusal
of Trooper Gray’s request to provide a breath specimen. We overrule Kelly’s third
issue.
Probable Cause for Search
In Kelly’s fourth issue, Kelly contends that Trooper Gray’s affidavit was
insufficient to support the magistrate’s conclusion that Kelly was probably guilty
of driving while intoxicated. Kelly argues that because the search warrant was not
validly issued, the trial court should have suppressed the results from his blood
test.
12
According to Kelly, Trooper Gray’s affidavit is insufficient because it
contains nothing that explains how Trooper Gray was certified in performing field
sobriety tests, fails to reflect that Trooper Gray was trained to detect intoxicated
drivers, fails to indicate that Trooper Gray’s opinions in other cases involving
intoxicated person were confirmed by subsequent testing, fails to explain what
Kelly had done while driving to lead Trooper Gray to suspect that he might be
intoxicated, fails to describe what Kelly said when he refused Trooper Gray’s
request for a specimen, and fails to indicate which law enforcement agency took
Kelly into custody. These arguments focus on information that Kelly contends is
not found in Trooper Gray’s affidavit rather than attacking the sufficiency of the
affidavit on the basis of the information that it does contain.
As a reviewing court, we are required to “give great deference to a
magistrate’s determination of probable cause.” State v. Jordan, 342 S.W.3d 565,
569 (Tex. Crim. App. 2011). “Probable cause exists if, under the totality of the
circumstances set forth in the affidavit before the magistrate, there is a ‘fair
probability’ that contraband or evidence of a crime will be found in a particular
place at the time the warrant is issued.” Id. at 568-69 (citing Illinois v. Gates, 462
U.S. 213, 238 (1983); Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App.
2010); Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007)). In
13
reviewing the magistrate’s determination on the issue, we determine whether “the
magistrate had a substantial basis for concluding that probable cause existed.” Id.
at 569 (internal quotations omitted).
In construing a probable cause affidavit, the magistrate is permitted to
“interpret the affidavit in a non-technical, common-sense manner and may draw
reasonable inferences from the facts and circumstances contained within its four
corners.” Id. The Texas Code of Criminal Procedure does not require probable
cause affidavits to contain the types of facts that Kelly contends are missing in
Trooper Gray’s affidavit; instead, the statute is more general, requiring that the
probable cause affidavit for a search warrant set “forth substantial facts
establishing probable cause[.]” Tex. Code Crim. Proc. Ann. art. 18.01(b) (West
Supp. 2012). The affidavit must contain enough information to allow the
magistrate “to independently determine probable cause[.]” Rodriguez, 232 S.W.3d
at 61.
In reviewing the determination of probable cause, we are “not to analyze the
affidavit in a hyper-technical manner.” State v. McLain, 337 S.W.3d 268, 271
(Tex. Crim. App. 2011). Our focus is on “the combined logical force of facts that
are in the affidavit,” and not on whether other facts could or should have been
included. Rodriguez, 232 S.W.3d at 62. “As long as the magistrate had a
14
substantial basis for concluding that probable cause existed, we will uphold the
magistrate’s probable cause determination.” Hughes v. State, 334 S.W.3d 379, 385
(Tex. App.—Amarillo 2011, no pet.) (citing Gates, 462 U.S. at 236).
Focusing on the contents of Trooper Gray’s affidavit, the affidavit indicates
that Trooper Gray is a certified police officer who has completed courses and
training in the field of alcohol detection and intoxication-related offenses, and that
in the past and, during his employment, he had observed numerous persons who
were under the influence of alcohol or other substances. Trooper Gray’s affidavit
also indicates that he believed that Kelly was operating his truck while intoxicated
and that he stopped Kelly for failing to signal. 4 Trooper Gray’s affidavit contains
his observations that Kelly had a strong odor of alcohol, slurred speech, swayed
and appeared unsure in his balance, was talkative and cocky, walked hesitantly and
in an unsure manner, and that he turned in an unsure manner. Trooper Gray also
indicated that Kelly refused some of the field sobriety tests, and on the test that
Trooper Gray did perform—the HGN—Kelly presented six out of six clues.
Trooper Gray’s affidavit notes that Kelly had a vertical nystagmus, ten bottle caps
4
Trooper Gray’s affidavit also mentions that Kelly was stopped for having
an obstructed license plate, but because we did not reach Kelly’s challenge to
whether the obstruction formed a valid basis for the stop, we also do not consider it
here.
15
in his front pocket that “were from tonight,” and that Kelly told Trooper Gray that
he had been drinking at a bon fire.
Viewing the four corners of Trooper Gray’s affidavit in a common sense,
non-technical manner, we conclude that it provided the magistrate with enough
information to allow the magistrate to independently conclude that a fair
probability existed that a blood draw would reveal evidence of a crime. See
Jordan, 342 S.W.3d at 568-69; Rodriguez, 232 S.W.3d at 62. We overrule Kelly’s
fourth issue.
Probable Cause Affidavit and False Statements
In issue five, Kelly argues that if we overrule his fourth issue, we should go
outside the four corners of the affidavit and consider testimony from the
suppression hearing and consider that during the hearing, Trooper Gray admitted
some of his statements in the probable cause affidavit are inaccurate. The allegedly
inaccurate statements concern the correct name of the road where the stop
occurred; whether the obscured license plate was a valid basis for the stop; and
whether Trooper Gray qualified Kelly for nystagmus gaze testing before
administering that test. The evidence from the suppression hearing reflects that
Trooper Gray’s statement in the affidavit about the location of the stop was not
16
accurate and that Trooper Gray qualified Kelly for nystagmus gaze testing after,
not before, the testing had occurred.
According to Kelly, under Franks v. Delaware, 438 U.S. 154, 155-56
(1978), the trial court should have excised the alleged false statements in Trooper
Gray’s probable cause affidavit before deciding whether the affidavit sufficiently
demonstrated probable cause. Without the benefit of the statements that Kelly
contends should be excised, Kelly argues the magistrate did not have sufficient
information to determine whether Kelly was driving in a public place. Kelly
concludes that after excising the incorrect statement from the affidavit, the
magistrate did not have sufficient evidence of probable cause to justify issuing the
warrant.
Under Franks v. Delaware, if a defendant establishes by a preponderance of
the evidence that an affiant made false statements knowingly and intentionally, or
with reckless disregard for the truth in a probable cause affidavit, and that the false
statements were material to establish probable cause, the false material must be
excised from the affidavit. 438 U.S. at 155-56; Harris v. State, 227 S.W.3d 83, 85
(Tex. Crim. App. 2007). Although the trial court did not conduct a separate Franks
hearing, one of the trial court’s conclusions was that Trooper Gray “made no
deliberate falsehoods in the affidavit for [the] search warrant of [Kelly’s] blood.”
17
The trial court also concluded that “[a]ny error in the search warrant was an
innocent mistake and if excised the affidavit for search warrant would still have
sufficient probable cause[.]” It appears from the trial court’s conclusions that the
trial court rejected Kelly’s claim that Trooper Gray’s statements were intentionally
false.
“An affidavit supporting a search warrant begins with a presumption of
validity; thus, the defendant has the burden of making a preliminary showing of
deliberate falsehoods in that affidavit before he is entitled to a Franks hearing.”
Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). While the
assumption exists that the evidence supporting a probable cause finding is truthful,
the Fourth Amendment does not mandate that every fact in a supporting affidavit
be necessarily correct. See Franks, 438 U.S at 164-65. “A misstatement in an
affidavit that is merely the result of simple negligence or inadvertence, as opposed
to reckless disregard for the truth, will not render invalid the warrant based on it.”
Dancy v. State, 728 S.W.2d 772, 782-83 (Tex. Crim. App. 1987) (clarifying that a
misstatement in an affidavit resulting from mere negligence in checking or
recording facts relevant to probable cause determination “is beyond the pale of
Franks”); see also Franks, 438 U.S. at 165.
18
At the suppression hearing, Trooper Gray admitted that the affidavit
incorrectly indicated that Kelly was operating his vehicle on FM 1488 and Old
Hockley, when he was actually on Old Hempstead Road. The maps admitted into
evidence show that FM 1488 and Old Hockley intersect to the south of the location
where Trooper Gray testified the stop occurred. The trial court could have
reasonably concluded that Trooper Gray’s misstatement about the location of the
stop was accidental, not deliberate.
Additionally, Trooper Gray also testified that when he conducted the stop,
he did not know what was blocking Kelly’s license plate. During the suppression
hearing, Trooper Gray testified that having a blocked license plate is not a concern
that is typically used for a stop, characterizing having a blocked license plate as a
frivolous issue. However, Trooper Gray also explained during the hearing that his
observation that Kelly’s license plate was blocked, along with the failure to signal,
were the reasons that led him to stop Kelly. Based on Trooper Gray’s testimony,
the trial court could reasonably conclude that Trooper Gray did not deliberately
attempt to mislead the magistrate by including in his affidavit all of the reasons
motivating him to conduct the stop, whether those reasons ultimately proved to be
justified. Based on the evidence, the trial court could reasonably conclude that
Trooper Gray did not deliberately attempt to mislead the magistrate by including
19
his observation of the blocked license plate as one of the reasons motivating
Kelly’s stop.
With respect to the statement in the affidavit that Kelly was “first qualified
as a candidate” for nystagmus gaze testing, the trial court was free to accept
Trooper Gray’s explanation that he asked Kelly the qualifying questions at the jail,
and that Kelly’s answers did not disqualify him as a viable candidate for
nystagmus gaze testing. Consequently, the trial court could reasonably conclude
that Trooper Gray qualified Kelly as a candidate, even if the qualifying questions
were asked after the testing was performed. In that light, and because the
representation regarding the candidate being first qualified is contained in a
preprinted form, the trial court could reasonably conclude that Trooper Gray’s
representation that Kelly was “first qualified” resulted from simple negligence or
inadvertence, and that while inaccurate, it was not deliberately false.
The trial court rejected Kelly’s assertion that Trooper Gray’s misstatements
were deliberately false. See Franks, 438 U.S. at 155-56. The trial court’s findings
and conclusions regarding the affidavit are supported by the record. See Dancy,
728 S.W.2d at 782-83. We overrule Kelly’s fifth issue.
20
Alleged Brady Violation
In issue two, Kelly contends the State withheld a statement that Trooper
Gray gave the Texas Rangers about the stop and subsequent DWI investigation.
During the hearing on Kelly’s Brady motion, Kelly asked the trial court to conduct
an in camera review of Trooper Gray’s statement. The trial court refused to review
the interview in camera.
While the matter was on appeal, we requested a copy of the statement that
Trooper Gray made to the Texas Rangers. Subsequently, the trial court provided us
with a sealed electronic recording of Trooper Gray’s interview by the Texas
Rangers. We have reviewed the interview to determine whether the trial court
committed reversible error by failing to require the State to disclose the interview.
To establish a reversible error under Brady, a defendant must show:
1) the State failed to disclose evidence, regardless of the prosecution’s
good or bad faith;
2) the withheld evidence is favorable to [the defendant]; [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.
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.
21
Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002) (footnotes omitted).
Additionally, “[f]avorable evidence is any evidence that, if disclosed and used
effectively, may make a difference between conviction and acquittal and includes
both exculpatory and impeachment evidence.” Harm v. State, 183 S.W.3d 403, 408
(Tex. Crim. App. 2006). “Exculpatory evidence may justify, excuse, or clear the
defendant from fault, while impeachment evidence is that which disputes or
contradicts other evidence.” Id. Under Brady, the materiality of undisclosed
information is not sufficiently proven by showing a mere possibility that
undisclosed information might have helped in the defense or that the undisclosed
information might have affected the outcome of the trial. Hampton, 86 S.W.3d at
612.
Having reviewed Trooper Gray’s interview with the Texas Rangers, we
conclude that it does not contain exculpatory or impeachment evidence that was
material to Kelly’s defense. See Hampton, 86 S.W.3d at 612. Accordingly, we
overrule Kelly’s second issue.
Having overruled all of Kelly’s issues, we affirm the trial court’s judgment.
AFFIRMED.
22
_________________________
HOLLIS HORTON
Justice
Submitted on December 27, 2012
Opinion Delivered September 18, 2013
Publish
Before Gaultney, Kreger, and Horton, JJ.
23