IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0852-10
JOSE LUIS PENA, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS LEON COUNTY
H ERVEY, J., delivered the opinion for a unanimous Court.
OPINION
Appellant was indicted for possession of more than five but less than fifty pounds
of marijuana. A jury found him guilty and sentenced him to life imprisonment as a
habitual offender. The Waco Court of Appeals affirmed, rejecting Appellant’s argument
that Brady1 applied when the State failed to disclose to Appellant the audio portion of a
videotape containing exculpatory statements that he made to police. Pena v. State, No.
1 Brady v. Maryland, 373 U.S. 83 (1963). Pena - 2
10-03-00109-CR, 2010 Tex. App. LEXIS 4389 (Tex. App.—Waco June 9, 2010) (op. on
remand, not designated for publication). We granted Appellant’s petition for
discretionary review to determine if Brady is applicable to these facts. We will hold that
it is, and we will reverse the judgment of the court of appeals.
I. FACTS
On September 27, 1998, Texas Department of Public Safety (DPS) Trooper Mike
Asby pulled over a van driven by Appellant for a traffic violation.2 When Appellant
exited the vehicle upon Asby’s request, the trooper noticed that Appellant smelled of
what he believed to be marijuana. Then, when he approached the van, Asby saw what he
thought was freshly cut marijuana covering the cargo area of the vehicle. Appellant was
subsequently arrested and transported to jail. These events were captured by a car-
mounted camera that videotaped the stop, detention, and transport to jail. The plant
material was seized and removed from the van. It was then sent to the DPS laboratory in
Waco for testing.
Appellant was indicted for possession of a usable quantity of marijuana in an
amount of more than five pounds but fifty pounds or less, enhanced by three prior felony
convictions.3 Pursuant to a Brady motion by the defense, the State, prior to trial, provided
Appellant with what purported to be a copy of the videotape from Asby’s car-mounted
2 Appellant was driving a rental van with Minnesota plates. 3 The indictment alleged that Appellant did “intentionally and knowingly possess a usable quantity of Marijuana of more than five (5) pounds but less than fifty (50) pounds.” Pena - 3
camera. Defense counsel was concerned that the tape had no audio, so he consulted with
the State and was advised that there was no sound on the recording. Then, in March
2002, Appellant filed a motion requesting to independently examine and test the
evidence. Unfortunately, this request proved to be impossible because the plant material
was destroyed in March 2000.
At trial, Asby was the first witness to testify. The State admitted the dash-
camera’s videotape before the jury as State’s Exhibit 1 and played it during Asby’s
testimony. The jury was told that it contained no audio but was otherwise accurate. Asby
explained that the lack of sound had resulted from either a battery malfunction or his
failure to activate the recording device that he carried. Asby stated that he was trained to
utilize such videotapes in court since they replicate “what happened out there that day.”
Asby testified that, based on his many years of experience, he believed that the
plant material in Appellant’s van was freshly cut marijuana. Although he had never
made another case from the seizure of fresh, green marijuana, Asby had observed the
sheriff’s department harvest marijuana and had seen growing fields of marijuana on ten or
twelve occasions. He asserted that he had never “pulled anybody over that had something
that smelled like marijuana that wasn’t marijuana.” Still, Asby acknowledged that
Appellant vehemently denied that the material was marijuana:
Q. [STATE]: Okay. Have you ever discovered something that looked like marijuana that wasn’t marijuana?
A. [ASBY]: I haven’t. I have heard there are cases where people sell false Pena - 4
narcotics. There was a sheet rock case in Dallas that made a lot of cocaine history, but I haven’t personally ever. That’s the reason we send it to the lab to have it analyzed to be sure it’s what we think it is.
Q. All right. At this point what is the defendant telling you?
A. He told me that it wasn’t marijuana.
Q. What did he tell you it was?
A. I don’t remember. He said he was going to make some stuff out of it. I can’t remember if he told me it was hemp or not, but he told me it wasn’t marijuana.
Q. And based on all your experience was it marijuana?
A. Yes, sir.
Asby stated that Appellant tried to convince the officers of the legal nature of the
plant material. Appellant told him that he had cut the plants on the side of the highway
somewhere in Kansas and that he was going to make “leather goods,” “trinkets,” and
“stuff” out of it. Asby testified, and the videotape confirms, that he spent considerable
time discussing the plant material with other officers at the scene. Asby admitted that he
may have even tried to call a chemist to verify Appellant’s story and to ask if the chemist
had “ever heard of something like marijuana, just hemp that is legal to have.” Asby’s
confusion was clear during this line of questioning:
Q. [DEFENSE]: When the other officers come ya’ll all go up and stand around the van, right?
A. [ASBY]: Correct.
Q. And ya’ll just kind of looking in there? Is that what you’re doing? I Pena - 5
notice they didn’t really climb in the van or do anything. Ya’ll are just standing by the door? What are ya’ll doing?
A. As I said before, this was an unusual case because normally drug trafficking goes north, not south. And we were pretty amazed that this load of marijuana was coming south. And I again questioned them, I said well, he says it’s not marijuana. I said -- and I knew that there was a substance called hemp and I was asking them. At some time I may even tried [sic] to call a chemist and say is there any validity to this story. And I asked them you ever heard of something like marijuana, just hemp that is legal to have.
Q. And so ya’ll were talking about this, trying to make a decision whether it really was marijuana or not, right?
A. I knew it was marijuana. I didn’t know if there was any kind of legal -- any kind of legal marijuana you could have according to what Mr. Pena said.
Q. So let me try to clarify a little bit there with you. Then there is legal marijuana and not legal marijuana or there is hemp that is legal and illegal marijuana which is cannabis sativa?
A. I don’t know. That’s what we were talking about.
Q. Okay. So you really were just -- you just didn’t know what it was then really did you?
A. I knew it was marijuana. In my experience it smelled like marijuana, it looked like marijuana, it felt like marijuana.
Although Asby remembered Appellant’s assertions that the plant material was not
marijuana, he could not recall if Appellant had requested testing of the plant material.
Q. [DEFENSE]: And, in fact, he also requested that it be tested didn’t he?
A.[ASBY]: Is that in my report? I don’t remember that. I knew I was going to have it tested.
Q: And he told you he wanted it tested, too, didn’t he? . . . He informed you Pena - 6
that he wanted not only to have ya’ll test it but that he wanted to test it, too, didn’t he?
A: That could be correct. I don’t remember.
DPS chemist Charles Mott testified next. He stated that he analyzed the plant
material submitted by Asby and determined that it was marijuana weighing 23.46 pounds.
Mott’s lab report, showing the results of his testing, was introduced into evidence as
State’s Exhibit 14. Mott explained that this conclusion was based on a microscopic visual
inspection and the presence of the chemical THC in the plant. He also testified that hemp
rope would not necessarily, but could possibly, test positive for THC “but that you would
have a rope and you wouldn’t be looking at it for marijuana . . . .”
Q. [DEFENSE]: When you test this you only test to see if there is any THC, not any percentile or quantity or anything else, right?
A. [MOTT]: That’s right. We do not quantitate the THC in the marijuana.
Q. So if you tested hemp rope it would still test and be positive for THC wouldn’t it?
A. Not necessarily, sir. Because hemp rope, whenever the marijuana plant matures you have the central stalk going up. And from this central stalk is where the hemp rope -- where you get the hemp rope. And by the time you make the rope, you take that fibrous material to make the rope, well, any of the THC is probably gone in the washing and so forth.
Q. So it would have to be washed out, physically removed, right?
A. I would think so, sir. If -- in the stalk it is probably not a whole lot present. It’s mainly in the leaves and the flowering top.
Q. But there is some in there isn’t there? Pena - 7
A. Yes, sir, it is.
Q. And so if it wasn’t washed, well, it could be possible it would test positive wouldn’t it?
A. On the stalk it’s a possibility, yes, sir.
Q. And what I’m talking about, if the rope material, the fibers weren’t washed well enough?
A. You mean the reason? I doubt if you would find it in the rope. But if you had some stalk you could probably find THC in stalk [sic].
Q. And so if the manufacturing process, if it wasn’t washed well and removed from it then it’s possible it would show up wouldn’t it?
A. It’s possible. But you would have a rope and you wouldn’t be looking at it for marijuana, sir.
Mott testified that the plant material was destroyed in March 2000, about a year
after its analysis and before “the defense was interested in testing this and having an
independent lab test.” Mott stated that the computer records reflected that a destruction
order was received, but he conceded that he did not know who sent the alleged order for
destruction. No one could say who authorized its destruction.4 Not only was the evidence
destroyed, but the file containing the original worksheet, reports, letters, and submission
forms was also destroyed or lost. It was discovered that the evidence was destroyed only
after a motion was filed to examine and test.
The parties rested after a State’s expert testified about the street value and quantity
4 Testimony showed that no destruction order was signed by the court, the prosecutor was not aware of this action, and Asby did not recall submitting such a request. Pena - 8
of the amount of marijuana involved here.
During closing jury arguments, the State claimed that the defensive theory that the
plant material was not marijuana was a “smoke screen,” and it attacked the credibility of
Appellant’s assertions related to his defense: “What I just heard is what we used to call
trickery when I was on the used car lot.” The State further argued that the defense did not
even request testing of the plant material until after it knew that the plant material had
been destroyed: “You know what the defense is going to be. We want to test the
marijuana. We want to test the marijuana. That wasn’t until 2002.”
It was discovered, following closing arguments and after the jury was sent to begin
deliberations, that a portion of the videotape (State’s Exhibit 1) had audio.5 The defense
pointed this out to the trial court:
[DEFENSE]: Also, in reference to the exhibits, Whitney and I noticed -- Whitney Smith, prosecutor, and I noticed when we were finishing up that tape and quickly cut it off that all of a sudden some sound came on when they were driving down the road and in the vehicle. The tape that I had, that Mr. Smith made for me, did not have any understandable words that we began to hear there. Whitney and I talked about this and we just want to take a few minutes right now and look and listen to the very end of that tape. I don’t know that it had been rewound.
THE COURT: Help yourself.
[DEFENSE]: In case we have to delete that portion out of it if they ask for it.
5 The record indicates that the videotape was played for the jury up to the point where Asby begins to drive away from the scene. It is shortly after that moment that the audio portion begins. Pena - 9
[STATE]: There is no objection from the State to delete that part because I only gave him stuff that didn’t have sound to it.
[DEFENSE]: We don’t know what it says.
THE COURT: Let him listen to it.6
The jury never heard the audio portion of the videotape. At least one juror was
initially persuaded that Appellant’s claims were reasonable; a note sent back by the jury
foreperson questioned what happened if the jury could not agree and indicated the current
vote was 11-1. Later, the jury found Appellant guilty of felony possession of marijuana,
affirmed the enhancement paragraphs, and sentenced him to life imprisonment.
Appellant, through counsel, filed a motion for new trial, which included eight
separate grounds for a new trial. Among other issues, the motion contended that trial
counsel rendered ineffective assistance, and one of the related allegations was that
“counsel was ineffective for failing to present to the jury the exculpatory audio portions
of the videotape.” At the hearing on the motion, the primary focus was on the audio
portion of the videotape. In his opening statement, motion counsel raised the possibility
that the State withheld that evidence. Trial counsel testified that he was advised by the
prosecutor that the videotape recorded by the arresting officer had no audio, and motion
counsel explained, “We assume there will be a record and if the record does reveal that
there was material on the tape that wasn’t played to the jury and the evidence was
6 The record does not show whether anything further occurred with the audio portion at trial. Pena - 10
exculpatory, then there are several possible issues that could be raised on appeal.”
Appellant testified at the hearing that he knew the audio portion of the videotape
was not played for the jury. He further stated that, after the jury was sent to deliberate, he
was in the courtroom when defense counsel pushed “play” on the video player, and they
heard audio on the tape. Appellant explained that the audio portion of the tape was where
“I’m telling [the trooper] that it’s not marijuana and that is it going to be tested and he
assured me that it would be, on the audio.”
The prosecutor took the stand last. He asserted that he did not hold anything back
from the defense, and he remembered hearing the audio after closing arguments. The trial
court subsequently denied the motion for new trial.
II. WACO COURT OF APPEALS
On appeal,7 Appellant claimed that the videotape provided to him by the State had
no audio and that the State’s failure to disclose the audio portion of the videotape violated
7 The Waco Court of Appeals initially sua sponte reversed Appellant’s conviction, finding that the Texas due course of law provision was violated by the State’s destruction and loss of both the evidence seized and all files related to this evidence, which denied Appellant the opportunity to test this material as he had requested. Pena v. State, 166 S.W.3d 275 (Tex. App.—Waco 2005). It did not reach Appellant’s remaining points of error. We granted discretionary review and reversed the court of appeals because the due course of law issue had not been raised by the parties. We remanded to allow parties to brief this issue. Pena v. State, 191 S.W.3d 133 (Tex. Crim. App. 2006). After additional briefing on the requested issues, the Waco court issued a second opinion affirming that error was preserved at the trial level and that Texas due course of law offered greater protection than federal due process. Pena v. State, 226 S.W.3d 634 (Tex. App.—Waco 2007). We granted review and again reversed because the separate Texas constitutional due course of law claim was not preserved. Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009). We remanded the case for consideration of Appellant’s remaining points of error. Pena - 11
Brady. Pena, 2010 Tex. App. LEXIS 4389. The Waco Court of Appeals rejected this
argument. It decided that Appellant knew of the existence and content of his statement in
the videotape since he was there when it was made. Id. at *2-3. “Brady does not apply to
the State’s failure to disclose a statement the defendant made to law enforcement
officials” under these circumstances. Id. at *3.
We granted Appellant’s petition for discretionary review challenging the court of
appeals’s holding. Specifically, Appellant’s ground for review stated the following:
Whether the court of appeals erred in concluding that the due process protections afforded under Brady v. Maryland, 373 U.S. 83 (1963), did not apply when the State failed to disclose or provide to Appellant, after specific request, the audio portion, containing exculpatory statements made by Appellant to police, of a videotape used by the State before the jury.
III. ARGUMENTS OF THE PARTIES
A. Appellant’s Arguments
Appellant contends that the State’s suppression of the audio portion of the tape,
despite his specific request for it, and the State’s denial that it existed violated his due
process right to a fair trial as mandated by Brady.
Appellant argues that the court of appeals incorrectly determined that Brady did
not apply when it misapplied Havard v. State, 800 S.W.2d 195 (Tex. Crim. App. 1996).
The court failed to consider the factual context of this case, which is clearly
distinguishable. Here, the statements were recorded and preserved by law enforcement
officers, who then maintained exclusive possession and control over the evidence, and Pena - 12
years later, there are no other means available to produce that exact evidence. Also,
Appellant was not aware that his arrest statements had been recorded and preserved, and
he was erroneously advised by the State that his statements were not in existence, as was
the jury.
In addition, Appellant maintains that the State used the tape to its advantage and
denied that a portion of it existed in order to mislead Appellant and the jury. Appellant
notes that Asby’s lack of memory and the State’s failure to disclose allowed the
prosecutor to argue that Appellant was engaged in a smoke screen or trickery and that he
did not request testing until after he knew that the evidence had been destroyed.
Appellant asserts that his claim satisfies the requirements of Brady. First, the State
failed to disclose the audio portion of the videotape. Second, the audio was favorable
because it supported his lack of culpability. Third, Appellant argues that the audio
evidence was material because the evidence that he requested for testing from the
beginning might have allowed a different approach by the defense. They could have
explored impeachment and better focused on mistake of fact, even if the substance was
marijuana. Finally, Appellant contends that the audio would have been admissible under
Rule of Evidence 107, which allows for the introduction of other recorded statements on
the same subject to explain acts previously admitted.
B. State’s Arguments
The State responds that Appellant failed to preserve the Brady complaint for Pena - 13
review because he failed to make any objection or request to the trial court regarding the
audio recording. The State notes that Appellant was aware of the audio portion before the
jury returned a verdict, but he made no Brady claim at that time. Nor did he request to re-
open the evidence, move for a mistrial, or request that the trial court refer the tape to the
jury. Further, Brady was not mentioned in the motion for new trial.
The State argues that, even if Appellant did preserve the issue for appeal, Brady is
inapplicable because the audio recording was of Appellant’s own comments to police.
Havard, 800 S.W.2d at 204-05. The State asserts that Brady is not implicated when the
item at issue is the defendant’s own statement. And, in any event, Asby testified
regarding those statements, meaning that Appellant was placed on notice.
Finally, the State contends that Brady does not apply because the audio portion of
the videotape would not have been admissible evidence. The State argues that
Appellant’s statements were exculpatory, self-serving hearsay, which would have been
inadmissible at trial. If Appellant wanted to place his statements before the jury more
forcefully, Appellant could have testified to them himself.
C. Appellant’s Reply
Appellant responds that his Brady claim was preserved for appellate review.
Appellant notes that he did not become aware of the audio portion until after the jury had
retired to deliberate. At that juncture, Article 36.02 of the Texas Code of Criminal
Procedure precluded the admission or introduction of the evidence, and the defense had Pena - 14
not had the opportunity to analyze this portion of the tape to formulate either a Brady
objection or a motion for mistrial. In addition, Appellant contends that, although the
written motion for new trial did not address Brady specifically, the hearing on the motion
did address the failure of the State to provide this material evidence, so the court was
advised of the Brady violation claim.
IV. PRESERVATION OF ERROR
Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate
Procedure, which provides that, to preserve error, a complaint must be “made to the trial
court by a timely request, objection, or motion that . . . state[s] the grounds for the ruling
that the complaining party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent from the
context.” Tex. R. App. P. 33.1(a)(1)(A). The record must also show that the trial court
“ruled on the request, objection, or motion, either expressly or implicitly” or “refused to
rule on the request, objection, or motion, and the complaining party objected to the
refusal.” Tex. R. App. P. 33.1(a)(2) (emphasis added).
A complaint is timely if it is made “as soon as the ground of objection becomes
apparent.” Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). Regarding its
specificity, the objection must simply be clear enough to provide the judge and the
opposing party an opportunity to address and, if necessary, correct the purported error.
Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App. 2009). No “magic words” are Pena - 15
required.8 Id. An objection is considered in the context in which the complaint was made
and the parties’ shared understanding of the complaint at that time. Lankston v. State, 827
S.W.2d 907, 911 (Tex. Crim. App. 1992).
In this case, defense counsel discovered the audio portion of the videotape after the
completion of final arguments and after the jury had retired to deliberations. At that time,
defense counsel was not aware of the substance of the audio—“We don’t know what it
says.” Thus, the grounds for an objection had yet to become apparent. Additionally,
Appellant could not then re-open the case in order to get the audio into evidence because
doing so would have been contrary to Article 36.02 of the Texas Code of Criminal
Procedure, which states, “The court shall allow testimony to be introduced at any time
before the argument of a cause is concluded, if it appears that it is necessary to a due
administration of justice.” (Emphasis added). The introduction of evidence after the
conclusion of closing arguments is prohibited. Williams v. State, 32 S.W. 893, 894 (Tex.
Crim. App. 1895); cf. Peek v. State, 106 S.W.3d 72, 74 (Tex. Crim. App. 2003).
After he was found guilty and sentenced, Appellant filed a motion for new trial,
asserting, inter alia, that defense counsel was ineffective for failing to attempt to place
the audio portion before the jury. The motion did not explicitly present the State’s failure
8 “Straightforward communication in plain English will always suffice.” Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992). “The standards of procedural default . . . are not to be implemented by splitting hairs in the appellate courts. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Id. at 909. Pena - 16
to provide this evidence as a Brady violation, but the hearing on the motion did address
the failure of the State to provide the material, exculpatory evidence. In fact, the audio
portion was the primary focus of the hearing.
In his initial argument, motion counsel raised the possibility that the State withheld
the evidence:
The second thing is -- is that there was a videotape that had an exculpatory portion in it. From what we have been told, there’s a videotape that has an exculpatory audio portion of it where, after his arrest, the defendant asked for the drugs to be tested and the officer told him the drugs would be tested. This video -- this audio portion of the videotape was never played to the jury . . . .
When trial counsel took the stand, he stated that he could not remember what was
included in the audio recording because he had not reviewed his notes. However, if
Appellant had requested that the plant material be tested, that would be consistent with
the defense’s position during trial, and it could be exculpatory. Trial counsel also
testified that he was advised by the prosecutor that the videotape had no audio, when in
fact it did. After hearing this testimony, the court objected that this issue was primarily
speculation in the absence of a completed record.9 Motion counsel responded,
[W]e intend to offer evidence that what was on the tape that was not played to the jury was the defendant’s assertion to the trooper . . . “It’s not marijuana” and asking the trooper to test it and the trooper assuring him that it would be tested. We believe that’s on the tape and I don’t have a copy of the tape but I’ve heard a description of it, so that’s what we believe is there. We believe that this defense counsel didn’t have access to the information prior . . . .
9 The court reporter had not yet completed his record of the trial. Pena - 17
The court interrupted this argument, but counsel then clarified his position:
Well, because we assume there will be a record and if the record does reveal that there was material on the tape that wasn’t played to the jury and the evidence was exculpatory, then there are several possible issues that could be raised on appeal. Was there --
Later, the prosecutor cross-examined trial counsel regarding the videotape, specifically its
audio. Appellant testified that the audio portion was not played for the jury and that,
when the videotape was played after the jury was sent to deliberate, the audio portion
began where “I’m telling [the trooper] that it’s not marijuana and that is it going to be
tested and he assured me that it would be, on the audio.” Finally, the prosecutor testified
on his own behalf that the State did not hold anything back from the defense.
Overall, the record of the motion for a new trial hearing reflects that the Brady
issue was preserved for appeal. Although the word “Brady” was not specifically used, the
trial court and the State were both aware of the purported error. The State’s failure to
provide the audio recording dominated the motion hearing, and all parties (the court, the
State, and the defense) made references to “material” and “exculpatory” evidence as well
as the possible appellate implications if the facts alleged by Appellant were proven to be
true. The Brady issue is sufficiently clear from the record, and when the trial judge
denied Appellant’s motion for new trial, he was implicitly ruling on the Brady claim.
See, e.g., Montanez v. State, 195 S.W.3d 101, 104-05 (Tex. Crim. App. 2006); Rey v.
State, 897 S.W.2d 333, 335-36 (Tex. Crim. App. 1995 ). The issue was properly
preserved. Pena - 18
V. BRADY CLAIM
The Supreme Court in Brady v. Maryland held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady, 373 U.S. at 87. The purpose of this rule was to
avoid an unfair trial of the accused: “A prosecution that withholds evidence on demand
of an accused which, if made available, would tend to exculpate him or reduce the penalty
helps shape a trial that bears heavily on the defendant.” Id. at 86-88. The Supreme Court
later explained that Brady essentially created a federal constitutional right to certain
minimal discovery.10 United States v. Bagley, 473 U.S. 667 (1985); United States v.
Agurs, 427 U.S. 97 (1976).
We have held that to find reversible error under Brady and Bagley, a defendant
must show that
(1) the State failed to disclose evidence, regardless of the prosecution's
good or bad faith;
(2) the withheld evidence is favorable to him;
(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.
10 However, “[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Pena - 19
Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Additionally, we require
that the evidence central to the Brady claim be admissible in court. Ex parte Kimes, 872
S.W.2d 700, 703 (Tex. Crim. App. 1993).
Here, the evidence at issue is the audio portion of the videotape (State’s Exhibit 1).
A review of the videotape reveals that the audio portion began shortly after Appellant was
placed in Asby’s vehicle, and it continued until Appellant was taken into the police
station. Initially, Asby informed Appellant of his Miranda rights. Then, the trooper and
Appellant discussed a variety of topics including why Appellant was traveling through
Oklahoma, why the van was dirty, where he obtained the plant material, what he was
going to make out of the material, and how he got the idea to do so. Significantly,
Appellant asked Asby how the police would go about testing the plant material. He
expressed that he was not worried about the results because he knew that it was not
marijuana, and Asby assured him that, if testing indicates that it was not marijuana,
Appellant would be released. Appellant also stated that he did not know that it was
illegal to possess the relevant plant material, and he would have dumped it if he had
known of that fact.
A. The State failed to disclose evidence
Brady held that the State has a constitutional duty to disclose to a defendant
material, exculpatory evidence. The scenarios to which Brady applies “involve[] the
discovery, after trial of information which had been known to the prosecution but Pena - 20
unknown to the defense.” Agurs, 427 U.S. at 103. Consequently, “Brady and its progeny
do not require prosecuting authorities to disclose exculpatory information to defendants
that the State does not have in its possession and that is not known to exist.” Hafdahl v
State, 805 S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990). Similarly, the State does not
have such a duty if the defendant was actually aware of the exculpatory evidence or could
have accessed it from other sources. See, e.g., Harm v. State, 183 S.W.3d 403, 407 (Tex.
Crim. App. 2006); Havard, 800 S.W.2d at 204-05; Jackson v. State, 552 S.W.2d 798, 804
(Tex. Crim. App. 1976).
The State failed to disclose the audio portion when the videotape evidence was
initially requested by defense counsel and again failed to disclose it after a second inquiry
by the defense that addressed the lack of sound on the copy previously provided. Both
prosecutor and defense counsel confirmed that no copy with audio was tendered.
The audio portion of the videotape was (or at least should have been) known to the
State. Even if the prosecutor was not personally aware of the audio recording, 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. Ex parte Reed, 271 S.W.3d
698, 726 (Tex. Crim. App. 2008). Here, State’s Exhibit 1 contained audio. The
videotape was created and preserved by law enforcement officers, agents of the State,
who then maintained exclusive control over the evidence. Pena - 21
Additionally, the audio evidence was unknown to Appellant since the State
consistently represented that the videotape contained no audio. The Waco Court of
Appeals relied on Havard v. State to hold that Brady is not invoked in this case because
the evidence at issue is Appellant’s own statements. However, the court erred in so
holding because this case is distinguishable from Havard and its progeny. In Havard, the
State called a police officer to testify, and in preparation for his cross-examination, the
defendant was given an offense report prepared by that officer. Havard, 800 S.W.2d at
204. The report included an exculpatory statement made by the defendant to law
enforcement officials. Id. The defendant argued that a Brady violation occurred when
the State failed to provide him with his prior statement. Id. We disagreed, holding that
Brady did not apply because the defendant “knew of the fact that he made a statement to
police and the content of that statement.” Id. at 204-05. We explained that he knew of
the statement’s existence and its content “as a matter of logic” since he was present at the
time that he made it. Id. at 204. We also emphasized that a defense exhibit presented at
trial, the script of a broadcast on a local radio station that included the defendant’s
statement, gave him notice prior to trial of his statement. Id. at 204-05.
Whereas the evidence central to Havard was a specific exculpatory statement
made by the defendant, the evidence at issue here is the entire audio portion of the
videotape. The audio replicates the full exchange between Asby and Appellant that
occurred while they traveled to the police station (including, for example, the recitation to Pena - 22
Appellant of his Miranda rights and Asby’s assurances that the plant material would be
tested), as well as other sounds of Appellant’s arrest and transport. Law enforcement,
unbeknownst to Appellant, recorded the videotape, and the State denied outright that the
videotape had audio. So although Appellant might have known of his exculpatory
statements, as he maintained all along that he had requested testing of the plant material
and continuously denied that it was marijuana, he was unaware that an audio recording
existed that captured those very remarks, among others.
Further distinguishing this case from Havard, the audio portion of the videotape
was the only piece of evidence that substantiated Appellant’s defense. Asby testified to
much of his interaction with Appellant, including Appellant’s claims that the plant
material was not marijuana, but significantly, he could not recall whether Appellant
requested that it be tested. And, in addition to denying that an audio portion existed, the
State took a position contrary to Appellant’s defense, arguing that he had not requested
testing of the plant material prior to its destruction. Hence, Appellant was unaware of the
only audio evidence that was proof that he actually requested testing at the time of his
arrest.
This case is also distinguishable from Hayes v. State, 85 S.W.3d 809 (Tex. Crim.
App. 2002), which relies on Havard for the proposition that there is no duty to disclose
material of which the defendant already has knowledge. See Hayes, 85 S.W.3d at 815
(“In Harvard v. State, this Court held that the Brady rule did not apply when the appellant Pena - 23
was already aware of the information.”). In Hayes, the defendant objected because the
State did not disclose favorable punishment evidence or a letter that he had written to his
mother-in-law, in which he expressed remorse for what he had done. Id. at 814. We held
that Brady was not controlling because the defendant wrote the letter; therefore, he was
aware of the existence and contents of the letter. Id. at 815. In contrast to Hayes,
Appellant was not “already aware of the information” that there was an audio portion of
the videotape, which documented his statements and the surrounding events and directly
supported his defense. Additionally, unlike in Hayes, law enforcement, rather than
Appellant, created the videotape and then informed Appellant that there was no audio.
This was also emphasized by the State at trial.
Therefore, the court of appeals erred in holding that Brady was not applicable in
this case. The duty to disclose existed because the audio recording was known to the
State but unknown to Appellant, supported his defense, and the State failed to disclose the
audio portion of the videotape.
B. Evidence withheld is favorable to Appellant
To succeed on a Brady claim, Appellant must also show that the evidence withheld
by the State was “favorable” to his case. Favorable evidence is that which, if disclosed
and used effectively, “may make the difference between conviction and acquittal.”
Bagley, 473 U.S. at 676. Favorable evidence includes exculpatory evidence as well as
impeachment evidence. Exculpatory evidence is that which may justify, excuse, or clear Pena - 24
the defendant from alleged guilt, and impeachment evidence is that which disputes,
disparages, denies, or contradicts other evidence. Harm v. State, 183 S.W.3d 403, 408
(Tex. Crim. App. 2006); Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992).
The audio portion of the videotape is favorable to Appellant because it can be
classified as both exculpatory and impeachment evidence. Pursuant to the indictment, the
State had to prove that Appellant “intentionally and knowingly” possessed marijuana.
See supra note 3. As revealed in the audio, Appellant’s continual denials demonstrated
his apparent belief that the plant material was not an illegal substance, and his immediate
insistence on testing further conveyed his faith that such an analysis would exonerate him
from any culpability. These beliefs, even if erroneous, could support his defense, thereby
exculpating Appellant.
The audio recording may also be employed as impeachment evidence. When
testifying, Asby was unable to recall if Appellant requested testing of the plant material.
Appellant’s insistence on testing, as heard during his transport, could have discounted
Asby’s testimony and supplemented the record. Additionally, the State emphatically
argued that the defense did not even request testing of the plant material until after it
knew that the plant material had been destroyed. The audio directly negates that claim
because, in fact, Appellant asked Asby to test it at the time of his arrest.
C. The evidence is material
Under Brady, nondisclosure of favorable evidence violates due process only if it is Pena - 25
“material” to guilt or punishment. “The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome of the
trial, does not establish ‘materiality’ in the constitutional sense.” Agurs, 427 U.S. at 109-
10. Hence, the defendant must show 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.”11 Hampton, 86 S.W.3d at 612; see Bagley, 473 U.S. at 682.
When evaluating whether the materiality standard is satisfied, the strength of the
exculpatory evidence is balanced against the evidence supporting conviction. Hampton,
86 S.W.3d at 613. The suppressed evidence is considered collectively, rather than item-
by-item. Kyles v. Whitley, 514 U.S. 419, 436 (1995). And it is important to consider how
disclosure could have affected defense preparation, with an awareness of the difficulty of
post-trial reconstruction. Bagley, 473 U.S. at 683. Thus, “[s]ometimes, what appears to
be a relatively inconsequential piece of potentially exculpatory evidence may take on
added significance in light of other evidence at trial.” Hampton, 86 S.W.3d at 613.
Here, the nondiclosure of the videotape’s audio portion is material. It undermines
the confidence in the outcome of the trial. Had the audio portion been disclosed to
Appellant, Appellant asserts that he would have modified his defensive strategies, and the
11 “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.’” Kyles v. Whitley, 514 U.S. 419, 434 (1995). This materiality standard is not a sufficiency of evidence test. Id. at 434-35. Pena - 26
State would have had to alter its arguments.
As Appellant points out in his brief, the disclosure of the audio portion would
have affected the presentation of his defense. Instead of focusing on the destruction of
evidence, Appellant would have instead chosen to pursue the defensive theory that he
lacked the requisite intent. As mentioned previously, the State had to prove that
Appellant “intentionally and knowingly” possessed marijuana. See supra note 3.
Appellant’s continual denials that the plant material was marijuana, combined with the
audio recording revealing that he immediately insisted on testing, supports the contention
that Appellant neither desired to possess what was indeed marijuana nor was aware that
he was doing so. The audio portion communicated Appellant’s apparent belief that the
testing of the plant material would reveal that it was hemp (i.e., from the part of the plant
of which possession is legal) and thereby exonerate him from any culpability. Therefore,
the defense could logically argue that Appellant’s belief, though erroneous, was
reasonable and negated the culpability required. With the presentation of this defense, the
jury would have been introduced to an alternate conclusion, and as it would be supported
by a real-time audio recording of Appellant’s own statements, there is at least a
reasonable probability that the jury verdict would have been different.
The significance of the audio portion becomes even more evident when the State’s
case is considered. Appellant’s conviction primarily rested on Asby’s testimony that the
plant material seized looked and smelled like marijuana, as substantiated by the results of Pena - 27
the analysis and testing performed by the lab in Waco. Based upon that evidence, the
State attacked the credibility of Appellant’s assertions that the material was not
marijuana, arguing that they were deceptive, insincere, and unworthy of belief. In
addition, the State asserted that Appellant did not initially request testing or otherwise
imply that testing was sought only after knowing that the evidence had been destroyed.
With the introduction of the videotape’s audio portion, the State would have altered these
arguments or abandoned them because the defense could have countered them by
showing, via the audio recording, that the demands for testing were actually made at the
time of arrest and, thus, Appellant’s assertions were accurate and more likely to be
accepted by the jury as honest and sincere.
Combining the effects on both parties’ trial strategies with the other evidence
presented at trial, it is reasonably probable that the outcome of the trial would have been
different. This conclusion is buttressed by the fact that at least one juror initially refused
to support the conviction, and even in the absence of the undisclosed evidence, there is
substantial evidence to support Appellant’s mistaken belief. Asby testified that this was
the only case of fresh marijuana that he had “made.” Asby stated that this was unlike
most drug trafficking cases because the plant material was fresh, rather than dried, and
Appellant was heading south, instead of north. Appellant apparently made no real effort
to hide or disguise the plant material, which covered the cargo area of the van and was
visible to Asby when he glanced into the backseat. Appellant immediately explained to Pena - 28
Asby that he was planning to use the material to make trinkets and leather goods. Finally,
Appellant’s emphatic claims and the unusual facts generated a lengthy discussion among
the officers about the material and even prompted Asby to call a chemist. All of this
needs to be considered against the fact of the mysterious destruction of the substance and
pertinent records before trial.
The test results establishing that the material was marijuana do not negate
Appellant’s defense because mistake of fact focuses on Appellant’s culpability, rather
than the actual identity of the plant substance. Still, it is important to consider that Mott
testified that hemp rope could possibly, though it would not necessarily, test positive for
THC, as marijuana does. When Mott’s testimony is combined with the other evidence
presented at trial, there is a reasonably probability that the jurors would be left with at
least some doubt and uncertainty as to Appellant’s guilt.
Overall, the audio portion of the videotape is of material significance to
Appellant’s case.
D. Evidence would be admissible
The State does not have a duty to disclose favorable, material evidence if it would
be inadmissible in court. Kimes, 872 S.W.2d at 703. Hearsay is “a statement, other than
one made by the declarant while testifying at trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Tex. R. Evid. 801(d). Generally, hearsay statements are
not admissible unless the statement falls within a recognized exception to the hearsay Pena - 29
rule. Texas Rule of Evidence 107, known as the rule of optional completeness, is such an
exception:
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.
Tex. R. Evid. 107. This evidentiary rule “is designed to reduce the possibility of the jury
receiving a false impression from hearing only a part of some act, conversation, or
writing.” Walters v. State, 247 S.W.3d 204, 218 (Tex. Crim. App. 2007). Thus, Rule 107
is not invoked by the mere reference to a document, statement, or act. Rather, to be
admitted under that rule, “the omitted portion of the statement must be ‘on the same
subject’ and must be ‘necessary to make it fully understood.’” Sauceda v. State, 129
S.W.3d 116, 123 (Tex. Crim. App. 2004).
In this case, while the audio portion of the videotape may be hearsay, it would be
admissible under Rule 107. The State introduced and relied upon the visual portion of the
videotape to prove its case. When the videotape was shown to the jury, Asby testified to
the exchange that occurred between himself and Appellant during the traffic stop and
Appellant’s subsequent detention. Asby also referenced Appellant’s denials that the plant
material was marijuana, but he could not recall whether Appellant requested testing of the
plant material. The audio portion of the videotape memorializes the conversation
between Appellant and Asby. Hence, the audio is on the same subject as other statements Pena - 30
introduced into evidence. In addition, the audio reflects that Appellant did indeed request
testing, making the audio’s disclosure necessary to clarify prior uncertainties in Asby’s
recollection and for the jury to have a full understanding of the case based on Appellant’s
own words delivered at the time of his arrest. Cf. Allridge v. State, 762 S.W.2d 146, 153
(Tex. Crim. App. 1988) (holding that the defendant’s self-serving hearsay confession was
not admissible under Rule 107 when the State offered a later confession which “did not
mislead the jury or leave the jury with only a partial or incomplete version of the facts”).
Accordingly, the audio portion of the videotape would be admissible pursuant to Rule
107.
VI. CONCLUSION
Because the audio portion of the videotape is favorable evidence that would be
material to Appellant’s case and the State failed to disclose such evidence to Appellant,
the State violated Appellant’s constitutional right as expressed in Brady. We reverse the
judgment of the court of appeals and remand the case to the trial court for a new trial.
Hervey, J.
Delivered: September 28, 2011
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