ACCEPTED 06-15-00112-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/21/2015 9:32:01 AM DEBBIE AUTREY CLERK No. 06-15-00112-CR IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT TEXARKANA, TEXAS 10/21/2015 9:32:01 AM DEBBIE AUTREY JEROME ANDERSON, Clerk
APPELLANT v. THE STATE OF TEXAS, APPELL EE
APPELLANT 'S BRIEF
On appeal from Cause No. 12-0427X in the 71 st District Court Harrison County, Texas
Robert Lee Cole, Jr. 409 N. Fredonia Street, Suite 101 Longview, TX 75601 SBOT: 0454 7800 903-236-6288 Phone 903-236-5441 Fax rcolej d@gmail.com Attorney for Appellant
Oral Argument is Not Requested IDENTITY OF PARTIES AND COUNSEL
Jerome Anderson, Appellant TDCJ #02001229 Joe F. Gurney Unit 1385 FM 3328 Palestine, TX 75803
Robert L. Cole, Jr. Appellant's Counsel on Appeal 409 N. Fredonia Street, Suite 101 Longview, TX 75601
Tommy Jackson at Trial Shawn Connally on Appeal Prosecutor Harrison County District Attorney's Office P.O. Box 776 Marshall, TX 75671
Honorable Brad Morin Presiding Trial Judge 71 st District Court 200 W. Houston Street, Suite 219 Marshall, TX 75670
11 TABLE OF CONTENTS Identity of Parties and Counsel 11
Table of Contents iii
Index of Authorities IV
Statement of the Case 1
Statement Regarding Oral Argument 1
Issues Presented 2
Issue No.1- The trial court erred by admitting into evidence the custodial interview of the defendant despite the defendant not waiving his right not to make any statement that might incriminate him.
Issue No. 2- The trial court erred by denying appellant's motion for continuance to locate a witness in that the prosecutor failed to update the contact information in the state's witness list.
Issue No. 3- The State failed to provide exculpatory or mitigating evidence in violation of the Confrontation Clause of the Sixth Amendment of the Constitution of the United States.
Statement of Facts 2-7
Summary of the Argument 8
Argument 8-19
Prayer 19
Certificate of Compliance 20
Certificate of Service 21
Appendix-Information-Cause No. 2:14-CR-5, U.S. v. West 22
lll INDEX OF AUTHORITIES CASES PAGE Brady v. Maryland, 373 U.S. 83 (1963) 16, 18-19 Colorado v. Connelly, 479 U.S. 157 (1986) 11 Cooks v. State, 844 S.W.2d 697 (Tex. Crim. App. 1992) 13 Ex Parte Mitchell, 853 S.W.2d 1 (Tex. Crim. App. 1993) 16 Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995) 13 Hill v. State, 429 S.W. 2d 481 (Tex. Crim. App. 1968) 11 Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996) 13 Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010) 11 Kyles v. Whitley, 514 U.S. 419 (1995) 14, 16-19 Miranda v. Arizona, 384 U.S. 436 (1966) 9, 11 Rosales v. State, 841 S.W.2d 368 (Tex. Crim. App. 1992) 13 , 14 Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992) 16 United States v. Agurs, 487 U.S. 97 (1976) 16 United States v, Bagley, 473 U.S. 667 (1985) 17, 18
CONSTITUTIONAL PROVISIONS, CODES, RULES
U.S. Const. amend. V 8,9 U.S. Const. amend. VI 2 8-9 ' Tex. Code Crim.Pro. art. 29.03 13 Tex. Code Crim.Pro. art. 29.06(a) 13 Tex. Code Crim.Pro. art. 38.22 8-9, 12 Tex. Health and Safety Code §481.112(£) 1 Tex. Health and Safety Code § 481.113( d) 1 Tex.R.App.Pro. 9.4 20 Tex.R.App.Pro. 43 .2 19
lV STATEMENT OF THE CASE
Appellant was charged by indictment November 29, 2012 for the offense of
possession with intent to deliver a controlled substance namely cocaine in an
amount of 400 grams or more (Texas Health and Safety Code§ 481.1129(£)) in
Count I and possession with intent to deliver four or more grams but less than 400
grams of methyllenedioxymethamphatine in Count II (Texas Health and Safety
Code§ 481.113(d)). (CR p.7.). Both offenses were alleged to have occurred on or
about September 23, 2011. (CR p. 7). Appellant waived arraignment and entered
pleas of not guilty January 22, 2013. (CR p. 39). Appellant elected to waive his
rights to a jury trial June 17, 2014. (CR p. 70). A bench trial was held April 28,
2015 where evidence was heard and also May 7, 2015 at which time Appellant was
sentenced to 15 years confinement. (RR Vol.2 pp. 14-226, RR Vol. 3, pp. 4-15).
Motion for New Trial and Motion in Arrest of Judgment was filed May 20, 2015
and heard before the trial court July13 , 2015. (CR pp. 151-154, RR Vol. 5, pp. 4-
10). The Recorder's Record was filed August 25, 2015. Appellant's brief is due
and timely filed on or before October 26, 2014.
STATEMENT REGARDING ORAL ARGUMENT
Oral Argument is Not Requested
1 ISSUES PRESENTED
Issue No.1- The trial court erred by admitting into evidence the custodial
interview of the defendant despite the defendant not waiving his right not to make
any statement that might incriminate him.
Issue No. 2- The trial court erred by denying appellant' s motion for
continuance to locate a witness in that the prosecutor failed to update the contact
information in the state' s witness list and provide exculpatory evidence prior to
trial.
Issue No. 3- The trial court erred by not requiring the state to identify a
confidential informant in violation of the Confrontation Clause of the Sixth
Amendment of the United States Constitution. U.S. Const. amend VI.
STATEMENT OF FACTS
On September 23, 2011 officers with the Marshall Police Department
searched a residence in Marshall, Texas based upon information contained in an
Affidavit for Search Warrant that was presented to a magistrate September 22,
2011 in Harrison County, Texas. (RR Vol. 5, Ex. 1). The affidavit for search
warrant relied upon assertions of a confidential informant, or CI, who purported to
be at the residence in question within 72 hours prior to the preparation of the
Affidavit for Search Warrant and claimed to have seen Appellant at the location
2 and observed Appellant to be in possession of cocaine and marijuana. (RR Vol.5,
Ex. 1).
Appellee, the State of Texas, provided a witness list that included the name
of William "Brody" West, an officer with the Marshall Police Department, and
provided his address at the office location of the Marshall Police Department. (CR
pp. 65-66) (RR Vol.2, pp. 14-28). Appellant filed a Motion for Continuance that
notified the trial court and the state, among other matters, that Appellant did not
have the identity of the confidential informant in order to properly confront
Appellant's accusers, and that Appellant also did not have the address of William
"Brody" West, also for the reason of confronting and examining his accusers and
pursuant to Tex. Code Crim. Pro. Art. 39.14. (CR pp. 108-110). The State was
aware that William "Brody" West was a subject of criminal investigation and
prosecution and conceded as much during their presentation in opposition to
Appellant's Motion for Continuance (RR Vol. 2, p. 27). The trial court denied
Appellant's Motion for Continuance, and proceeded with trial. (RR Vol. 2, p.28).
Lieutenant Lynn Ames testified that he was a patrolman assigned to the
narcotics division and participated in the execution of a search warrant at
Appellant's (Anderson' s) house. (RR Vol.2, pp. 31-33). Ames testified that a
search of the residence turned up firearms and narcotics. (RR Vol.2, p.35).
Through Ames, the State introduced the return on the search warrant and
3 photographs taken at the time of the search. (RR Vol.2 p. 37; RR Vol. 5, Exhibits).
Ames also testified as to the locations of the objects identified in the photographs
and that drugs, guns, razor blades and currency was found in the searched
residence (RR Vol. 2 pp. 33-88). Ames also testified he was of the opinion that
Anderson possessed the narcotics with the intent to distribute (RR Vol. 2, pp. 87-
88).
Ames also testified how confidential informants were commonly used, and
that some would receive money while others would try to help themselves on
pending criminal cases. (RR Vol. 2, pp. 91-92). Ames also testified that William
"Brody" West was a narcotics officer at the time of the search and that West
participated in this investigation (RR Vol. 2, p. 92). Ames also testified that West
used confidential informants, that West resigned from the police department
because West was under investigation, that he was working with an informant, and
that something was being done incorrectly (RR Vol. 2, pp. 92- 93). Ames testified
that West had contact with the confidential informant in this case on more than a
few occasions. (RR Vol. 2, pp. 95-96). Ames also testified that he did not know
who was investigating West, but that he thought it was a federal investigation, and
that he assumed that the district attorney's office had been informed of the
investigation. (RR Vol. 2, pp. 93-94). Evidence collected by West was relied upon
by Ames in the course of the investigation of Anderson. (RR Vol 2, p. 100).
4 There was another individual in the house at the time of the search and in the
same proximity to all the seized evidence that the police did not arrest. (RR 2, Vol.
2, p. 96). Appellant again asked for and was refused the name of the confidential
informant in this case. (RR Vol. 2, pp. 99-100).
Sarah Hodges was the crime scene officer and she took photographs of
various items collected at the scene in addition to the scene of the search itself; she
also testified as to taking collected substances to the crime lab for forensic
analysis. (RR Vol. 2, pp. 105-130). Hodges further stated that there were two
people at the home when the search began, that these individuals were removed
from the home during the search, and that no fingerprints were taken from the bags
of contraband seized. (RR Vol. 2, pp. 130, 141-142). She also admitted that there
was no way to say that appellant had ever touched the bags containing any of the
contraband and that no DNA samples were taken. (RR Vol. 2, pp. 130, 142-143).
Hodges also testified that William "Brody" West prepared some of the
incident report, that he participated in the search of the house, and that he no longer
worked for the Marshall Police Department. (RR Vol. 2, pp. 143-144).
Claybion Cloud III is a forensic chemist who has been employed at the
Department of Public Safety Crime Laboratory in Tyler, Texas for the past sixteen
years. Mr. Cloud testified as to his qualifications, the accreditation of the DPS lab,
and the process by which items are tested. (RR Vol. 2, pp. 145-149). Mr. Cloud
5 identified those items that were taken to the lab in this case, described the tests he
performed, and the results of the testing (RR Vol.2, pp. 150-154, 157-159). He also
testified that the drug tested was cocaine and to the weight of each sample of drug
that he tested (RR Vol. 2, pp. 160-162). Mr. Cloud also testified that he saw no
evidence that the bags containing the drugs he tested had ever been fingerprinted.
(RR Vol. 2, p. 166). The State stipulated on the record that no fingerprints were
taken of any of the firearms seized. (RR Vol. 2, p. 167).
Joe Bounds is an investigator with the Ha1Tison County District Attorney ' s
Office who was previously employed as a narcotics investigator with the Harrison
County Sheriff's Office. (RR Vol. 2, p. 168). On September 23 , 2011 Bounds,
along with William "Brody" West, conducted a custodial interview with the
Appellant that was recorded., and in which the defendant was told of his rights, but
not asked whether he waived his rights (RR Vol , 2, pp. 168-174). Bounds also
admitted that William "Brody" West is the one who advised appellant of his rights
and questioned him. (RR Vol.2, pp. 174-175). Bounds further testified that West
was no longer employed with the Marshall Police Department, that he was told that
the investigation of West was being conducted by the FBI (see Appendix), and that
the investigation was widely known by members of the Harrison County District
Attorney's Office. (RR Vol. 1, pp. 174-176)(see Appendix). He further stated that
West previously dealt with confidential informants, that he could not rule out that
6 West had any contact with the informant in this case, and that he could not rule
out that the FBI investigation of West did not predate September 23, 2011. (RR
Vol. 2, pp. 174-178).
Arllie Anderson is Jerome Anderson's mother, and she is the owner of the
house that was searched in this case. (RR Vol.2, pp. 187, 190). She also testified
that Appellant lived in the house on September 23, 2011 and that she came by
there some. (RR Vol. 2, p. 191). She also said that Jerome had been previously
shot, and that there was nothing illegal about owning firearms or surveillance
equipment especially after they had been shot. (RR Vol 2, pp. 202-205).
7 SUMMARY OF THE ARGUMENT
In his first issue, Appellant complains that the court admitted into evidence
the recordings of his custodial interview which are memorialized in State's
Exhibits 16 and 17. This interview was conducted in violation of Tex. Code Crim.
Pro. Art. 38.22 and the rights not to incriminate oneself and the right to counsel
protected by the Fifth and Sixth Amendments to the Constitution of the United
States.
In his second point of error, Appellant asserts that the trial court erred by
denying appellant's motion for continuance in that information regarding the
location of a witness was incorrect and who was an investigating officer who is
under investigation for malfeasance.
In his third point of error, Appellant argues that the state failed to provide
evidence which was mitigating or exculpatory in violation of his due process rights
provided by the Constitution of the United States.
ARGUMENT ISSUE NO. 1- The trial court erred by admitting into evidence the
recordings of his custodial interview which are memorialized in State' s Exhibits 16
and 17. This interview was conducted in violation of Tex. Code Crim. Pro. Art.
8 38.22 and the rights not to incriminate oneself and the right to counsel protected by
the Fifth and Sixth Amendments to the Constitution of the United States.
After being placed into custody and taken to law enforcement offices,
former police officer William "Brody" West read Jerome Anderson his statutory
warnings pursuant to Art. 38.22. Investigator Joe Bounds of the Harrison County
District Attorney's Office was also present and assisted during the custodial
interview. The defendant did not clearly or affirmatively assert his understanding
of those rights, and he did not waive those rights. The defense disagrees with the
State's assertions as to the responses by Appellant. Neither of the peace officers
present asked the defendant if he waived his rights. Evidence before the trial court
from three defense witnesses, and investigating officer Lieutenant Len Ames is
that the defendant in this case has never been convicted of a felony in the State of
Texas, nor any other state. (RR. Vol. 2, pp.103 , 182, 187, 212). The defense timely
objected to the admissibility of the statement at trial 28 April 2015. (RR Vol. 2,
pp. 171-173).
The requirement requiring police officers to read and secure waivers of the
United States Constitution right against self-incrimination was first recognized by
the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966).
Those Constitutional rights have been codified and enhanced by the Texas
Legislature and exist now in the Texas Code of Criminal Procedure Art. 38.22.
9 Art. 38.22 (3)(a) state in part that" no oral or sign language statement of an
accused made as a result of custodial interrogation shall be admissible against the
accused in a criminal proceeding unless: prior to the statement but during the
recording the accused is given the warning in Subsection (a) of Section 2 above
and the accused knowingly, intelligently, and voluntarily waives any rights set out
in the warning."
The Court of Criminal Appeals has stated,
"Article 38.22 of the Code of Criminal Procedure establishes procedural safeguards for securing the privilege against self-incrimination. CODE CRIM. PROC. ANN. art. 38.22. Among its requirements, it provides that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless (J) the statement was recorded and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. CODE CRIM. PROC. ANN. art. 38.22, § 3. The warning must inform a defendant of the fo llowing rights:
( l) He has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time.
Tex. Code Crim. Pro. art. 38.22, § 2. The statute contains two distinct elements pertaining to a statement's admissibility: the defendant's receipt of the
10 prescribed warning and his waiver of the rights set out in the warning." Joseph v. State, 309 S. W.3d 20(Tex. Crim. App.- 2010).
The Joseph Court also stated:
"The State has the burden of showing that a defendant knowingly, intelligently, and voluntarily waived his lvliranda rights. See Miranda, 384 U.S. at 444, 475 , 86 S.Ct. 1602; Hill v. State, 429 S.W.2d 481 , 486 (Tex.Crim.App.1968). The State must prove waiver by a preponderance of the evidence. Colorado v. Connelly, 4 79 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)."
In addition, Joseph also pointed out that the waiver need not be explicit, but
that the waiver must be knowingly, intelligently and voluntarily waived using a
totality of the circumstances standard.
The concunence in Joseph, stated:
"Merely asking the accused whether he understood his rights does not satisty the duties of an interrogating officer or make any statement the accused might then make admissible . .Miranda requires the interrogating officer to go further and make sure that the accused, knowing his rights, voluntarily relinquishes them /~
However, "an express statement is not invariably necessary to support a finding that the defendant waived either the right to remain silent or the right to counsel. uz Under some circumstances, if a suspect has been fully warned of his rights and has indicated that he understands those rights, a course of conduct consistent with waiver "may" support the conclusion that the suspect has waived his Miranda rights. ~ However, the courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but at least in some cases waiver can be clearly inferred from the actions and words of the person intenogated.2
That is, the deck is stacked against the finding of an implicit waiver, but the State may, at least in some cases, show that a waiver can be clearly inferred from the suspect's words and actions after having been warned."
11 It is quite clear that the preferred method of obtaining an express waiver is
through an express waiver of Art. 38.22 rights.
The State of Texas failed to prove that the defendant waived his Art. 38.22
rights in any way. The evidence shows that the defendant was not experienced in
any way with the criminal justice system and its nuances. Further, there is
insufficient proof that the defendant even understood his rights. The comments of
the defendant, as recorded, provides clear evidence that he did not waive his Art.
38.22 rights. He hemmed and hawed all through the advisement of rights. Further,
he was not ever asked whether he wanted to waive his rights. Therefore, no
explicit waiver occurred.
Having not waived his rights, either explicitly nor impliedly, the statement
of the defendant cannot be entered into evidence, and should not have been
considered by the trial court.
Issue No. 2- The trial court erred by denying appellant's motion for
continuance to locate a witness in that the prosecutor failed to update the contact
information in the state's witness list and provide exculpatory evidence prior to
trial. Appellant sought a continuance in order to locate and serve a subpoena on
12 William "Brody" West after learning that he could not be found at the address
provided by the prosecution and relied upon by the defense.
Tex. Code Crim. Pro. Article 29.03 provides that a criminal action may be
continued on motion by either party, upon sufficient cause shown in the motion.
Tex. Code Crim. Pro., Article 29.06(6) states that the sufficiency of the motion
shall be addressed to the sound discretion of the trial court, and shall not be granted
as a matter of right. The trial court' s ruling on a motion for continuance is
reviewed under an abuse of discretion standard. Janecka v. State, 937 S.W.2d 456,
468 (Tex.Crim.App. 1996), cert. denied, 118 S.Ct. 86,139 L.Ed.2d 43 (1997);
Heiselbetz v. State, 906 S.W.2d 500 (Tex.Crim.App. 1995); Cooks v. State, 844
S.W.2d 697, 725 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 927, 113 S.Ct.
3048, 125 L.Ed.2d 732 (1993). To establish an abuse of discretion the defendant
must show that he was actually prejudiced by the denial of his motion. Heiselbetz ,
906 S.W.2d at 511. "Where denial of a continuance has resulted in demonstrated
prejudice, we have not hesitated to declare an abuse of discretion. Rosales v. State,
841 S.W.2d 368, 372 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 949, 114
S.Ct. 393, 126 L.Ed.2d 341 (1993)." Janecka, supra. With respect to the prompt
and efficient administration of justice versus the rights of the defendant to a fair
trial: [T]he United State's Supreme Court has observed that the question of
whether or not to grant a continuance: "is traditionally within the discretion of the
13 trial judge, and it is not every denial of a request for more time that violates due
process even if the party fails to offer evidence or is compelled to defend without
counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend with counsel an empty
formality. There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly the reasons presented to the
trial judge at the time the request is denied. [citations omitted]." Rosales, supra at
374, quoting Ungar v. Sarafite, 376 U.S. 575 , at 589, 84 S.Ct. 841 , at 849- 850, 11
L.Ed.2d 921, at 931 (1964) (emphasis added). The State is required to disclose
exculpatory evidence regardless of whether counsel requests it. Kyles, supra. Had
this information been available prior to trial, counsel would have been able to
better investigate these suspects, develop evidence and present it as part of his
defense. Had he been able to do so, he would have been better prepared to present
evidence that William "Brody" West was under FBI investigation, that William
"Brody" West had contact with the confidential informant, the relationship with
West had with the informant and other party at the scene, and the reason for
release of the other individual located at the residence that was searched.
Moreover, in excess of three years had elapsed from the time of the offense until
the case went to trial. Appellant knew practically nothing of William "Brody"
14 West's background. Ifhe had known of West' s federal charges to trial, he may
have been able to confront West regarding whether his malfeasance may also have
affected Appellant's case. For this reason, the trial court erred in refusing to grant
him a continuance.
Issue No. 3- In his fourth point of error, Appellant argues that the state
failed to provide evidence which was mitigating or exculpatory in violation of his
due process rights provided by the Constitution of the United States.
In this case the State filed a witness list containing the name of William
"Brody" West and listing his address as "Marshall Police Department, Marshall,
Texas" and provided the non-emergency number of the Marshall Police
Department. (CR, p. 65). The elected district attorney, when referring to the legal
status of West stated that he knew that Mr. West was being prosecuted in the
federal system, and attempted to cast that knowledge upon the defense (RR. Vol. 2,
pp. 27-28). Lieutenant Len Ames testified that William "Brody" West was
involved in the investigation, that West worked as a narcotics investigator, that
West was working with the informant in this case, that he believed that it was a
federal investigation, and that West had contact with this informant on more than a
few occasions. (RR Vol. 2, pp. 92-96). Appellant requested the identity of the
informant and that information was denied. ( RR Vol 2. Pp.99-100).
15 Joe Bounds, now an investigator with the Harrison County District
Attorney's Office, testified that he understood that West was under investigation
(RR Vol. 2, p.175). Bounds also stated he knew of the investigation during the
entirety of his employment at the district attorney's office, and that it was widely
known in that office that West was under investigation. (RR Vol.2, pp. 174-176).
Bounds also could not rule out that the FBI investigation did not predate the
offense alleged in this case. (RR Vol. 2, pp. 177).
A prosecutor has an affirmative duty to disclose, prior to trial, all evidence
favorable to the accused. See Kyles v. Whitley, 514 U.S . 419, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 215
( 1963 ). If the withheld evidence is favorable to the accused and is material, the
defendant is entitled to a new trial. Id. The Court of Criminal Appeals, consistent
with Supreme Court precedent, has held a three-part test applies to a claim that
undisclosed evidence violates a defendant' s right to due process. Such a violation
occurs when a prosecutor: 1) fails to disclose evidence; 2) which is favorable to the
accused; 3) that creates a probability sufficient to undermine confidence in the
outcome of the proceeding. Ex Parte Mitchell, 853 S.W.2d 1, 4 (Tex.Crim.App.
1993); Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App. 1992).
Impeachment evidence is favorable evidence. Mitchell, supra at 4; Thomas,
16 supra at 404. The Supreme Court has held "that regardless of request, favorable
evidence is material, and constitutional error results from its suppression by the
government, ' if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. '"
Kyles v. Whitley, 514 U.S. at 433-434, 115 S.Ct. at 1565, quoting United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (opinion ofBlackmun, J.) ; id. at
685, 105 S.Ct. at 3385 (White, J. , concurring in part and concurring in judgment)
87 L.Ed.2d 481 (1985).
In Kyles , the Supreme Court discussed and emphasized four aspects of
materiality under Bagley. First, a showing of materiality does not require the
defendant to demonstrate that disclosure of the suppressed evidence would have
resulted ultimately in his acquittal, whether based on the presence of reasonable
doubt or acceptance of an explanation for the crime that does not inculpate the
defendant. Kyles , 514 U.S. at 434-435 , S.Ct. at 1565-66. "The question is not
whether the defendant would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a
different result is accordingly shown when the Government's evidentiary
suppression ' undermines confidence in the outcome of the trial. "' Id. , S.Ct. at
1566, quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.
17 Secondly, Bagley materiality is not a sufficiency of the evidence test. "One
does not show a Brady violation by demonstrating that some of the inculpatory
evidence should have been excluded, but by showing that the favorable evidence
could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict." Kyles , U.S. at 435, S.Ct. at 1566.
Thirdly, once the reviewing court applying Bagley has found constitutional
error there is no need for further harmless-error review. "Assuming arguendo that a
harmless error enquiry were to apply, a Bagley error could not be treated as
harmless, since ' a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different,' ... necessarily
entails the conclusion that the suppression must have had 'substantial and injurious
effect or influence in determining the jury's verdict," ' Kyles , U.S. at 435, S.Ct. at
1566 (internal citations omitted).
Finally, the Court stressed as the fourth aspect of Bagley materiality that its
definition in terms of suppressed evidence is considered collectively, not item-by-
item, viz: While the definition of Bagley materiality in terms of the cumulative
effect of suppression must accordingly be seen as leaving the government with a
degree of discretion, it must also be understood as imposing a corresponding
burden. On the one side, showing that the prosecution knew of an item of favorable
evidence unknown to the defense does not amount to a Brady violation, without
18 more. But the prosecution, which alone can know what is undisclosed, must be
assigned the consequent responsibility to gauge the likely net effect of all such
evidence and make disclosure when the point of "reasonable probability" is
reached. This in tum means that the individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the government's behalf in
the case, including the police. But whether the prosecutor succeeds or fails in
meeting this obligation (whether, that is, a failure to disclose is in good faith or bad
faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197), the prosecution's
responsibility for failing to disclose known, favorable evidence rising to a material
level of importance is inescapable. Kyles, U.S. at 437-438, S.Ct. at 1567.
By failing to provide Appellant with information regarding the address of
William "Brody" West, the nature of the federal investigation into the conduct of
William "Brody" West, the relationship that West may have had with the
confidential informant in this case, it is clear that the State failed in its duty to
provide such evidence to Appellant. Such failure resulted in the denial of a fair
PRAYER
Wherefore, premises considered, Appellant prays that this Honorable Court
of Appeals, pursuant to Texas R. App. Pro. 43.2, reverse the finding of guilty by
the trial court and render a judgment of acquittal.
19 Respectfully Submitted,
ROBERT L. COLE, JR. Attorney for Appellant SBOT; 0454 7800 409 N. Fredonia, Suite 101 Longview, TX 75601 903-236-6288 Phone 903-236-5441 Fax rcolejd(LV,gmail.com e-mail
CERTIFICATE OF COMPLIANCE I hereby certify that this computer generated document contains 4,253 words
as limited by Texas Rule of Appellate Procedure Rule 9.4.
ROBERT L. CO E, JR. Counsel for Ap ellant
20 CERTIFICATE OF SERVICE
I hereby certify that on this the 21st day of October 2015, a copy of the
foregoing has been delivered via fax transmission to Han-ison County District
Attorney's Office, 903-938-3912, with attention to Shawn Connally, Attorney for
Appellee.
21 APPENDIX
Information United States District Court, Eastern District of Texas, Marshall Division
Cause No. 2:14-CR-5
United States of America v. William West
(3 pages follow)
22 Case 2:14-cr-00005-JRG-RSP Document 1 Filed 08/05/14 Page 1of3 PagelD #: 1
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
UNITED STATES OF AMERICA § § V. § NO. 2:14-CR-5 § JUDGE: Gilstrap/Payne WILLIAM WEST §
INFORMATION
THE UNITED STATES ATTORNEY CHARGES:
Count One
Violation: 18 U.S.C. § 4 (Misprision of a Felony)
On or about March, 2012 in Harrison County, Texas, in the Eastern District of
Texas, the Defendant, William West (West), having knowledge of the actual commission
of a felony cognizable by a court of the United States, to wit: Possession with Intent to
Distribute Cocaine, in violation of 21U.S.C.§841(a)(l), did conceal said felony by
sending a text message to an individual who was then and there in possession of cocaine
with the intent to distribute, to "shut it down" when West knew that law enforcement
officers were actively engaged in an effort to collect evidence against said individual, in
order to facilitate the commission of said felony, and did not as soon as possible make
known the same to some judge or other person in civil authority under the United States, in
violation of 18 U.S.C. § 4.
Information - Page 1 of 3 Case 2:14-cr-00005-JRG-RSP Document 1 Filed 08/05/14 Page 2 of 3 PagelD #: 2
JOHN M. BALES UNITED STATES ATTORNEY
Date 8/5/2014
Information - Page 2 of 3 Case 2:14-cr-00005-JRG-RSP Document 1 Filed 08/05/14 Page 3 of 3 PagelD #: 3
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
UNITED STATES OF AMERICA § § v. § NO. 2:14-CR-5 § WILLIAM WEST §
NOTICE OF PENAL TY
Penalty: A fine of not more than $250,000.00; imprisonment for not more than three (3) years; or both. A term of supervised release of not more than one (1) year.
Special Assessment: $100.00
Information - Page 3 of 3