IN THE TENTH COURT OF APPEALS
No. 10-20-00091-CR
BRANDON DUANE MCDANIEL JR., Appellant v.
THE STATE OF TEXAS, Appellee
From the 12th District Court Walker County, Texas Trial Court No. 28524
MEMORANDUM OPINION
In three issues, appellant, Brandon Duane McDaniel Jr., complains that the trial
court abused its discretion by: (1) sustaining the State’s objection to his request for the
psychiatric and mental-health records of Officer Joshua Warvel of the Huntsville Police
Department by way of a timely-filed subpoena duces tecum; (2) not allowing him to
cross-examine Officer Warvel about whether he suffers from post-traumatic stress
disorder; and (3) sustaining the State’s objection to his request for the Huntsville Police Department policy or procedural manual. Because we overrule all of appellant’s issues
on appeal, we affirm.
Background
Charging appellant with aggravated assault against a public servant, the
indictment alleged that appellant intentionally and knowingly threatened Officer Warvel
with imminent bodily injury by shooting a firearm in Officer Warvel’s direction while
knowing that Officer Warvel was a public servant. Approximately a week prior to the
guilt-innocence phase of trial, appellant filed a “Notice of Subpoena Duces Tecum” to
compel the State to produce the following information:
1. All POLICE RECORDS dealing with Joshua Warvel, former Huntsville Officer . [sic] #262, including but not limited to his disciplinary reports, personnel files, certifications, service records, medical history, psychiatric or mental health records and any and all arrest or other reports pertaining to Joshua Warvel during his time of employment with Huntsville Police Department.
2. A copy of the most recent and current edition of the Huntsville Police Department policy or procedural manual which outlines the protocol that officers are to adhere to when executing their duties.
The City of Huntsville and Sergeant Roy Moore of the Huntsville Police Department,
neither of which were parties to this proceeding, objected to both requests for production.
The trial court sustained both of the objections.
This matter proceeded to trial before a jury. At the conclusion of the evidence, the
jury found appellant guilty of the charged offense. The trial court assessed punishment
McDaniel v. State Page 2 at forty years’ incarceration in the Institutional Division of the Texas Department of
Criminal Justice.
Thereafter, appellant filed a motion for new trial, which the trial court denied after
a hearing. The trial court also certified appellant’s right of appeal, and this appeal
followed.
Appellant’s Subpoena Duces Tecum
In his first and third issues, appellant complains about the trial court’s adverse
rulings regarding his requests that the State produce Officer Warvel’s psychiatric and
mental-health records and the Huntsville Police Department policy or procedural
manual. Specifically, appellant asserts that the failure to produce this information
constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963).1
STANDARD OF REVIEW & APPLICABLE LAW
A defendant in a criminal case has no general right to pre-trial discovery of
evidence in the State’s possession. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct.
837, 51 L. Ed. 2d 30 (1977) (“There is no general constitutional right to discovery in a
1 It is worth noting that, in his first and third issues, appellant does not assert an argument under article 39.14 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 39.14. Moreover, there is nothing in the record indicating that appellant made a request to discover Officer Warvel’s psychiatric and mental-health records and the Huntsville Police Department policy or procedural manual under article 39.14. Therefore, we analyze appellant’s first and third issues only within the context of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), which appellant first raised in his motion for new trial.
McDaniel v. State Page 3 criminal case, and Brady did not create one.”); see also Pena v. State, 353 S.W.3d 797, 809
n.10 (Tex. Crim. App. 2011). However, there exists a federal constitutional right to certain
minimal discovery under Brady and its progeny. See United States v. Bagley, 473 U.S. 667,
675, 105 S. Ct. 3375, 3379-80, 87 L. Ed. 2d 481 (1985) (“The prosecutor is not required to
deliver his entire file to defense counsel, but only to disclose evidence favorable to the
accused that, if suppressed, would deprive the defendant of a fair trial.”); United States v.
Agurs, 427 U.S. 97, 108-09, 96 S. Ct. 2392, 2399-400, 49 L. Ed. 2d 342 (1976); Pena, 353 S.W.3d
at 809. This federal constitutional right is violated only if: (1) the State failed to disclose
evidence, regardless of the prosecution’s good or bad faith; (2) the withheld evidence is
favorable to the accused; 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. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).
A “reasonable probability” is a probability sufficient to undermine confidence in
the outcome of the trial. Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993)
(citing United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481
(1985)). Moreover, “[f]avorable evidence includes exculpatory evidence and
impeachment evidence.” Ex parte Chaney, 563 S.W.3d 239, 266 (Tex. Crim. App. 2018)
(citing Bagley, 473 U.S. at 676, 105 S. Ct. at 3380-81). “Exculpatory evidence justifies,
excuses, or clears a defendant from fault. Impeachment evidence disputes, disparages,
denies, or contradicts other evidence.” Id. (citing Harm v. State, 183 S.W.3d 403, 408 (Tex.
McDaniel v. State Page 4 Crim. App. 2006)). Impeachment evidence includes information that tends to discredit
the testimony of witnesses for the State. See Giglio v. United States, 405 U.S. 150, 154-55,
92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972). “[A] subpoena duces tecum is not to be used as
a discovery weapon, but as an aid to discovery based upon a showing of materiality and
relevance.” Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.—Waco 1998, pet. ref’d)
(internal citations omitted); see TEX. CODE CRIM. PROC. ANN. art. 24.02 (authorizing the
issuance of a subpoena duces tecum to direct a particular witness to produce in court
writings and other things in his possession).
Upon a plausible showing that the subpoenaed documents are material and
favorable to the defense, the documents must be provided to the defendant unless the
documents are privileged or confidential. Pennsylvania v. Ritchie, 480 U.S. 39, 60-61, 107
S. Ct. 989, 1002-03, 94 L. Ed. 2d 40 (1987). When a party seeks to compel the production
of confidential or privileged documents, the trial court is required to conduct an in
camera inspection of those documents prior to ordering their disclosure. See In re Moore,
615 S.W.3d 162, 169 (Tex. App.—Austin 2019, no pet.) (citations omitted); see also Ritchie,
480 U.S. at 60-61, 107 S. Ct. at 1002-03; United States v. Nixon, 418 U.S. 683, 713-14, 94 S. Ct.
3090, 3110, 41 L. Ed. 2d 1039 (1974) (approving of the trial court’s procedure of ordering
“an in camera examination of the subpoenaed material” that the trial court considered to
be “presumptively privileged”); Thomas v. State, 837 S.W.2d 106, 114 (Tex. Crim. App.
1992). However, an in camera inspection is not required unless the defendant establishes
McDaniel v. State Page 5 a basis for his claim that the documents contain material and favorable evidence. See
Ritchie, 480 U.S. at 58 n.15, 107 S. Ct. at 1002; see also United States v. Valenzuela-Bernal, 458
U.S. 858, 867, 102 S. Ct. 3440, 3446, 73 L. Ed. 2d 1193 (1982) (“He must at least make some
plausible showing of how their testimony would have been both material and favorable
to his defense.”).
DISCUSSION
As stated above, the trial court sustained the objections to appellant’s requests for
production of Officer Warvel’s psychiatric and mental-health records, as well as the
Huntsville Police Department policy or procedural manual. And because appellant did
not make a bill of exception or attempt to procure the complained-of evidence in another
way, the record does not contain the complained-of evidence in any form.
In any event, appellant asserted at trial that he was entitled to Officer Warvel’s
record as a police officer, as well as his mental-health and psychiatric records, because
Officer Warvel was the alleged victim in the case. On this record, the trial court could
reasonably conclude that the information requested by appellant in the subpoena—all of
Officer Warvel’s police records—was overbroad. See TEX. GOV’T CODE ANN. § 552.102(a)
(excepting information in a personnel file which would constitute a clearly unwarranted
invasion of personal privacy from public disclosure); Page v. State, 7 S.W.3d 202, 206-08
(Tex. App.—Fort Worth 1999, pet. ref’d) (concluding that the defendant did not make a
plausible showing that evidence of alleged DWI task force quotas and an officer’s arrest
McDaniel v. State Page 6 reports were material and favorable to his defense); see also Hughes v. State, No. 01-11-
00282-CR, 2012 Tex. App. LEXIS 5658, at **6-8 (Tex. App.—Houston [1st Dist.] July 12,
2012, pet. ref’d) (mem. op., not designated for publication) (concluding that a subpoena
that did not explain the materiality or relevance of the items requested was overbroad).
Additionally, regarding Officer Warvel’s mental-health and psychiatric records,
appellant asserted at trial that the subpoenaed documents were relevant to determine
whether Officer Warvel was treated for post-traumatic stress disorder (“PTSD”) and
whether he was mistaken about being fired at because he allegedly suffers from PTSD.
However, appellant indicated that he did not have any evidence that Officer Warvel was
being treated for PTSD. Rather, appellant stated that he had “a very strong suspicion.”
Further, the testimony of Officer Warvel belies appellant’s “very strong
suspicion.” Specifically, Officer Warvel recounted that he could hear a bullet whizz by
him based on his experience,
in a very combatic [sic] area when I was deployed in Afghanistan, and then as well as in training environments, being in the military, we’ve had the unfortunate event of always having the understanding of what it sounds like to hear a gun go off, as well as we’ve also heard what it sounds like for bullets to go approximately in a close distance to us as well as over our head.
Due to having been exposed to this already, I absolutely knew at that time what—what just occurred. But at the same time I was in a complete state of shock not understanding that I’m more in a civilian realm, in a civilian world where I’m no longer deployed to Afghanistan and was unsure why, you know, I was—like did this really just happen? I just got shot at in my community? So at that time, I was in a state of shock as well as looking for self preservation and preservation of the community. McDaniel v. State Page 7 On cross-examination, Officer Warvel acknowledged that he had been shot at
“[c]ountless” times while deployed in Afghanistan. In fact, he “received a combat action
ribbon, which indicates that [he] was involved in a combat incident.” When asked if
being shot at was traumatic, Officer Warvel responded, “I would say it was not traumatic,
it was just doing my job.” Appellant then asked whether Officer Warvel had been treated
for PTSD, and Officer Warvel responded, “I’d rather, if I don’t have to, disclose my VA
records.”
Nothing in the record suggests that Officer Warvel experienced trauma or was
treated for PTSD before the shooting incident involving appellant that serves as the basis
of this case and that Officer Warvel’s mental condition at the time affected his perception
of the events. Appellant only insinuates that Officer Warvel may have been treated for
PTSD at some time prior to the shooting incident.
Regardless, appellant did not demonstrate 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 of Officer Warvel’s mental-health and psychiatric
records. See Webb v. State, 232 S.W.3d 109, 115 (Tex. Crim. App. 2007); see also Hampton v.
State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). As such, we conclude that the trial court
did not abuse its discretion by determining that appellant did not establish a Brady
violation. See Webb, 232 S.W.3d at 115 (“‘The mere possibility that an item of undisclosed
evidence might have helped the defense, or might have affected the outcome of the trial, McDaniel v. State Page 8 does not establish materiality in the constitutional sense.’” (quoting Hampton, 86 S.W.3d
at 612)). We overrule appellant’s first and third issues.
Officer Warvel’s Testimony
In his second issue, appellant argues that the trial court abused its discretion by
not allowing him to cross-examine Officer Warvel about whether he has PTSD related to
being under fire while deployed in Afghanistan. Appellant contends that the trial court
denied him of the ability to present a complete defense and of his right to confrontation,
in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
See U.S. CONST. amends. VI, XIV.
THE CONFRONTATION CLAUSE OF THE UNITED STATES CONSTITUTION
We first analyze appellant’s contention regarding the Confrontation Clause of the
Sixth Amendment to the United States Constitution. The record reflects that the State
objected to appellant’s line of questioning regarding Officer Warvel’s possible PTSD
diagnosis and treatment. In response to the State’s objection, appellant stated that he
desired to pursue this line of questioning to establish whether or not Officer Warvel was
mistaken about being fired at because he suffers from PTSD. The trial court sustained
the State’s objection, and appellant did not complain about the trial court’s ruling, nor
did he attempt to make an offer of proof.
To preserve error for appellate review, a complaining party must make a timely
and specific objection. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349
McDaniel v. State Page 9 (Tex. Crim. App. 2002). Texas courts have held that points of error on appeal must
correspond or comport with objections and arguments made at trial. Dixon v. State, 2
S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State, 154 S.W.3d 235, 241 (Tex.
App.—Texarkana 2005, pet. ref’d). “Where a trial objection does not comport with the
issue raised on appeal, the appellant has preserved nothing for review.” Wright, 154
S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding
that an issue was not preserved for appellate review because appellant’s trial objection
did not comport with the issue he raised on appeal).
Here, appellant’s Confrontation-Clause complaint on appeal does not comport
with the arguments made at trial. As such, we cannot say that appellant has preserved
his Confrontation-Clause complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1);
see also Resendiz, 112 S.W.3d at 547; Dixon, 2 S.W.3d at 273; Wright, 154 S.W.3d at 241.
APPELLANT’S RIGHT TO PRESENT A COMPLETE DEFENSE
We now address appellant’s contention that he was denied the ability to present a
complete defense.
Preservation
Texas Rule of Evidence 103(a)(2) provides that a party may claim error in a ruling
to exclude evidence only if the error affects a substantial right of the party and the party
informs the trial court of the substance of the evidence by an offer of proof, unless the
substance is apparent from the context. See TEX. R. EVID. 103(a)(2). As stated above,
McDaniel v. State Page 10 appellant did not complain about the trial court’s ruling on the State’s objection to his
line of questioning pertaining to Officer Warvel’s possible diagnosis and treatment of
PTSD, nor did he attempt to make an offer of proof.
Despite appellant failure to make an offer of proof under Texas Rule of Evidence
103(a)(2), the Court of Criminal Appeals has outlined the following exception to the Rule
103(a)(2) offer of proof:
Instead, we offer this clarification of the exception: where the defendant, in cross-examining a State’s witness, desires to elicit subject matters that tend to impeach the witness’s character for truthfulness—for example, to show malice, ill-feeling, ill-will, bias, prejudice, or animus on the part of the witness toward the defendant—in order to preserve the issue for appellate review, he is not required to show that his cross-examination would have affirmatively established the facts sought, but merely that he desired to examine the witness with regard to those specific subject matters that tend to impeach the witness during his cross-examination.
Holmes v. State, 323 S.W.3d 163, 170 (Tex. Crim. App. 2009).
In the instant case, appellant notified the trial court of his desire to cross-examine
Officer Warvel about whether or not he was mistaken about being fired at because he
suffers from PTSD. This appears to satisfy the exception to Rule 103(a)(2), as articulated
in Holmes. See id.; see also TEX. R. EVID. 103(a)(2). Accordingly, we conclude that appellant
preserved this complaint for review. We now analyze the merits of appellant’s complaint
that he was denied the opportunity to present a complete defense.
McDaniel v. State Page 11 Standard of Review & Applicable Law
We review a trial court’s decision to limit or exclude topics from cross-examination
under an abuse-of-discretion standard. Johnson v. State, 490 S.W.3d 895, 917 (Tex. Crim.
App. 2016); see Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (noting that
the “trial judge has wide discretion in limiting the scope and extent of cross-
examination”). Likewise, we review a trial court’s decision on the admissibility of
evidence under an abuse-of-discretion standard. Johnson, 490 S.W.3d at 908. We uphold
the trial court’s ruling if it was correct on any applicable theory of law. Id. We reverse
that ruling only if it “falls outside the zone of reasonable disagreement.” Id.
“A defendant’s constitutional right to a meaningful opportunity to present a
complete defense is rooted in the Fourteenth Amendment’s Due Process Clause and the
Sixth Amendment’s Compulsory Process and Confrontation Clauses.” Anderson v. State,
301 S.W.3d 276, 280 (Tex. Crim. App. 2009). Here, appellant complains that the trial court
denied him the opportunity to present a complete defense by improperly limiting his
cross-examination of Officer Warvel.
Trial judges may place limitations on the scope and extent of cross-examination so
long as those limitations do not infringe on the Confrontation Clause’s guarantee of “an
opportunity for effective cross-examination.” Johnson, 490 S.W.3d at 909. Wide latitude
is afforded to trial judges’ restrictions on cross-examination based on criteria such as
“harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that
McDaniel v. State Page 12 is repetitive or only marginally relevant.” Id. at 910 (quoting Delaware v. Van Arsdall, 475
U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)). However, the Constitution “could
be offended if a state evidentiary rule prohibited the defendant from cross-examining a
witness concerning possible motives, bias, and prejudice to such an extent [that] he could
not present a vital defensive theory.” Id.
Cross-examination “to show that [a] witness has suffered a recent mental illness
or disturbance is proper, provided that such mental illness or disturbance is such that it
might tend to reflect upon the witness’s credibility.” Virts v. State, 739 S.W.2d 25, 30 (Tex.
Crim. App. 1987). But “the mere fact that the State’s testifying witness has in the recent
past suffered or received treatment for a mental illness or disturbance does not, for this
reason alone, cause this kind of evidence to become admissible impeachment evidence.”
Id. The admissibility of mental-illness evidence is necessarily an ad hoc decision, and
“great deference” is given to the trial court’s decision on admissibility. Id. In determining
whether mental-illness evidence is relevant, courts look to the purpose for offering the
evidence and whether there is a direct or logical connection between that evidence and
the proposition to be proved. Goodwin v. State, 91 S.W.3d 912, 917 (Tex. App.—Fort Worth
2002, no pet.).
An evidentiary ruling that denies a criminal defendant the constitutional right to
present a complete defense is subject to a harm analysis. Potier v. State, 68 S.W.3d 657,
666 (Tex. Crim. App. 2002) (noting that “the specific rule that applies to this error in
McDaniel v. State Page 13 admitting evidence is Rule of Evidence 103(a),” which states that “[e]rror may not be
predicated upon a ruling which admits or excludes evidence unless a substantial right of
the party is affected” and that “the standard of review under that rule is the same as that
under Rule of Appellate Procedure 44.2(b)”). Exclusion of evidence in a criminal trial
should be disregarded unless it is constitutional error or non-constitutional error that
substantially affects the defendant’s rights. See TEX. R. APP. P. 44.2(a)-(b). When a
defendant’s evidence is excluded, it is constitutional error “only if the evidence forms
such a vital portion of the case that exclusion effectively precludes the defendant from
presenting a defense.” Potier, 68 S.W.3d at 665. Therefore, exclusion is not prejudicial if
the defendant was not prevented from presenting the substance of his defense to the jury.
Id.
In the instant case, appellant presented no evidence that Officer Warvel suffered
from a mental illness or disturbance at or near the time of the shooting incident or in the
remote past. Furthermore, appellant presented no evidence that Officer Warvel’s mental
condition at the time of the shooting incident affected his perception of the events. See
Scott v. State, 162 S.W.3d 397, 401-02 (Tex. App.—Beaumont 2005, pet. ref’d) (concluding
that the trial court did not abuse its discretion by not permitting the jury to hear evidence
of a State’s witness’s mental illness where there was no evidence that the mental illness
or disturbance affected the witness’s perception of the events) (citing Lagrone v. State, 942
McDaniel v. State Page 14 S.W.2d 602, 613 (Tex. Crim. App. 1997) (stating that, to pursue impeachment of a
witness’s perceptual capacity with evidence of drug addiction, counsel must demonstrate
actual drug-based impairment during the witness’s observation of the crime)); see also
Virts, 739 S.W.2d at 30 (“On the other hand, if the witness’s mental illness or mental
disturbance occurred in the remote past, and there is no showing that such has revived,
the fact that the witness has suffered in the remote past a mental illness or mental
disturbance should not be admitted into evidence because such would probably be totally
irrelevant and immaterial to the defendant’s trial.”). We therefore cannot say that the
trial court abused its discretion by not permitting the jury to hear this evidence. See
Johnson, 490 S.W.3d at 917; see also Hammer, 296 S.W.3d at 561. Moreover, after reviewing
the entire record, including the theories advanced by the defendant at trial, we cannot
conclude that the trial court’s decision to exclude this topic from cross-examination
prevented appellant from presenting a complete defense. See Johnson, 490 S.W.3d at 910.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
MATT JOHNSON Justice
McDaniel v. State Page 15 Before Chief Justice Gray, Justice Johnson, and Visiting Justice Davis2 (Chief Justice Gray concurring with a note)* Affirmed Opinion delivered and filed August 18, 2021 Do not publish [CRPM]
*(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the trial court’s judgment. A separate opinion will not issue.)
2The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
McDaniel v. State Page 16