In The Court of Appeals Seventh District of Texas at Amarillo
Nos. 07-18-00431-CR & 07-18-00432-CR
THOMAS MAYHEW, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court Nos. 67,386-E & 75,005-E, Honorable Abe Lopez, Presiding
February 18, 2020
MEMORANDUM OPINION Before QUINN, C.J., and PARKER, and DOSS, JJ.
Through our Cause No. 07-18-00432-CR, Thomas Mayhew (appellant) appeals
his convictions for two counts of indecency with a child by sexual contact in trial court
cause number 75,005-E. Four distinct convictions form the basis of his appeal in our
Cause No. 07-18-00431-CR. Two of the four entered in trial court cause number 67,386-
E involved the aggravated sexual assault of a child under 14, while the others were for
indecency with a child by contact or sexual contact. His two issues before us concern whether the trial court erred in denying his motions for continuance and mistrial, and
whether trial counsel was ineffective. We affirm.
Issue One – Continuance and Mistrial
Appellant’s allegations about the continuance and mistrial stem from a purported
Brady1 violation. Allegedly, “prosecutorial misconduct [occurred] at trial consist[ing] of the
failure by the State to timely provide appellant with information containing potential
impeachment evidence of a fact witness who testified during guilt innocence.” The
information was disclosed by the State to defense counsel after the jury retired to consider
guilt/innocence and returned a verdict of guilty. We overrule the issue.
Under Brady, the prosecution is obligated to disclose to the defense both
exculpatory and impeaching evidence. Brady, 373 U.S. at 87; Pena v. State, 353 S.W.3d
797, 810–11 (Tex. Crim. App. 2011). However, the burden lies with the defendant to
prove that the State failed to fulfill its duty. Perales v. State, No. 07-12-00290-CR, 2013
Tex. App. LEXIS 11476, at *3 (Tex. App.—Amarillo Sept. 5, 2013, no pet.) (mem. op., not
designated for publication); Pitman v. State, 372 S.W.3d 261, 264 (Tex. App.—Fort Worth
2012, pet. ref’d). This burden normally requires him to establish that 1) pertinent
information was not disclosed; 2) the undisclosed information was exculpatory or
susceptible to being used as impeachment evidence favorable to the accused, and 3) the
data was material. Pena, 353 S.W.3d at 809; Perales, 2013 Tex. App. LEXIS 11476, at
*3. When such information was not concealed but rather untimely disclosed, a defendant
must also show that he was prejudiced by the delay. Little v. State, 991 S.W.2d 864, 867
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2 (Tex. Crim. App. 1999); State v. DeLeon, 971 S.W.2d 701, 705–06 (Tex. App.—Amarillo
1998, pet. ref’d).
Interestingly, prejudice is also a component of materiality, according to our Court
of Criminal Appeals. See Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006)
(stating that “[i]ncorporated into the third prong, materiality, is a requirement that [the]
defendant must be prejudiced by the state’s failure to disclose”). Indeed, the tests used
in assessing both are rather synonymous. See Banks v. Dretke, 540 U.S. 668, 698, 124
S. Ct. 1256, 157 L. Ed. 2d 1166 (2004) (stating that “[u]nless suppressed evidence is
‘material for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice
to overcome [a] procedural default’”). For instance, purported Brady information is
material when “there is a reasonable probability that had the evidence been disclosed,
the outcome of the trial would have been different.” Salazar v. State, 222 S.W.3d 10, 14
(Tex. App.—Amarillo 2006, pet. ref’d); see also Banks, 540 U.S. at 698 (stating that
materiality is shown when the evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict). In turn, prejudice
arising from the failure to timely disclose is shown when the “result of the proceeding
would have been different had the evidence been disclosed earlier.” State v. Tarin, No.
04-17-00198-CR, 2018 Tex. App. LEXIS 3055, at *18 (Tex. App.—San Antonio May 2,
2018, pet. ref’d) (mem. op., not designated for publication); accord Little, 991 S.W.2d at
867 (requiring the defendant to establish prejudice and stating that, under the present
circumstances, “he cannot show that the outcome of the proceeding would have been
different had that fact been disclosed earlier”). So, since both materiality and prejudice
depend on the probability of a different outcome had the data been revealed, undertaking
3 the analysis of one effectively encompasses the other. And, finally, in establishing if the
outcome would have differed, the defendant’s burden obligates him to assess his claim
“in light of all the evidence.” Ex parte Lalonde, 570 S.W.3d 716, 725 (Tex. Crim. App.
2019) (quoting Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002)). The mere
chance that the undisclosed data “might have helped . . . or affected the trial’s outcome”
is not enough. Id.
Here, appellant’s victims were two children with whom he lived. The charges
against him were instigated after a 16-year-old (Ivory) saw him and one of the two children
laying on a couch together and staring at the ceiling. Ivory characterized the activity as
odd or “weird” but saw no touching or the like. That resulted in her informing the children’s
mother about the incident. Eventually, Ivory contacted the police, as well. That
communication eventually led to an investigation and appellant’s ultimate prosecution.
During trial, Ivory related the foregoing incident to the jury. Little else was said by her,
though.
The alleged Brady information in question concerned a much earlier incident
between Ivory and appellant. Apparently, the latter sexually assaulted her, too, years
earlier. She described that assault during an exchange with one of the State’s
prosecutors in preparation for trial. Ivory then told her mother about the exchange with
the prosecutor and what she said. Yet, “her recall [of appellant’s assault upon her]
differed from her mother’s recall of what Ivory had told her . . . regarding this prior
extraneous offense,” according to the Brady notification given defense counsel. That
resulted in Ivory telling the prosecutor with whom she originally spoke that her present
recollection of the assault differed from her earlier recollection. Another prosecutor
4 uncovered this bit of information after the guilt/innocence phase of the trial resulted in a
guilty verdict and notified defense counsel of it.
Upon being afforded the Brady notification, defense counsel moved for a
continuance.
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In The Court of Appeals Seventh District of Texas at Amarillo
Nos. 07-18-00431-CR & 07-18-00432-CR
THOMAS MAYHEW, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court Nos. 67,386-E & 75,005-E, Honorable Abe Lopez, Presiding
February 18, 2020
MEMORANDUM OPINION Before QUINN, C.J., and PARKER, and DOSS, JJ.
Through our Cause No. 07-18-00432-CR, Thomas Mayhew (appellant) appeals
his convictions for two counts of indecency with a child by sexual contact in trial court
cause number 75,005-E. Four distinct convictions form the basis of his appeal in our
Cause No. 07-18-00431-CR. Two of the four entered in trial court cause number 67,386-
E involved the aggravated sexual assault of a child under 14, while the others were for
indecency with a child by contact or sexual contact. His two issues before us concern whether the trial court erred in denying his motions for continuance and mistrial, and
whether trial counsel was ineffective. We affirm.
Issue One – Continuance and Mistrial
Appellant’s allegations about the continuance and mistrial stem from a purported
Brady1 violation. Allegedly, “prosecutorial misconduct [occurred] at trial consist[ing] of the
failure by the State to timely provide appellant with information containing potential
impeachment evidence of a fact witness who testified during guilt innocence.” The
information was disclosed by the State to defense counsel after the jury retired to consider
guilt/innocence and returned a verdict of guilty. We overrule the issue.
Under Brady, the prosecution is obligated to disclose to the defense both
exculpatory and impeaching evidence. Brady, 373 U.S. at 87; Pena v. State, 353 S.W.3d
797, 810–11 (Tex. Crim. App. 2011). However, the burden lies with the defendant to
prove that the State failed to fulfill its duty. Perales v. State, No. 07-12-00290-CR, 2013
Tex. App. LEXIS 11476, at *3 (Tex. App.—Amarillo Sept. 5, 2013, no pet.) (mem. op., not
designated for publication); Pitman v. State, 372 S.W.3d 261, 264 (Tex. App.—Fort Worth
2012, pet. ref’d). This burden normally requires him to establish that 1) pertinent
information was not disclosed; 2) the undisclosed information was exculpatory or
susceptible to being used as impeachment evidence favorable to the accused, and 3) the
data was material. Pena, 353 S.W.3d at 809; Perales, 2013 Tex. App. LEXIS 11476, at
*3. When such information was not concealed but rather untimely disclosed, a defendant
must also show that he was prejudiced by the delay. Little v. State, 991 S.W.2d 864, 867
1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2 (Tex. Crim. App. 1999); State v. DeLeon, 971 S.W.2d 701, 705–06 (Tex. App.—Amarillo
1998, pet. ref’d).
Interestingly, prejudice is also a component of materiality, according to our Court
of Criminal Appeals. See Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006)
(stating that “[i]ncorporated into the third prong, materiality, is a requirement that [the]
defendant must be prejudiced by the state’s failure to disclose”). Indeed, the tests used
in assessing both are rather synonymous. See Banks v. Dretke, 540 U.S. 668, 698, 124
S. Ct. 1256, 157 L. Ed. 2d 1166 (2004) (stating that “[u]nless suppressed evidence is
‘material for Brady purposes, [its] suppression [does] not give rise to sufficient prejudice
to overcome [a] procedural default’”). For instance, purported Brady information is
material when “there is a reasonable probability that had the evidence been disclosed,
the outcome of the trial would have been different.” Salazar v. State, 222 S.W.3d 10, 14
(Tex. App.—Amarillo 2006, pet. ref’d); see also Banks, 540 U.S. at 698 (stating that
materiality is shown when the evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict). In turn, prejudice
arising from the failure to timely disclose is shown when the “result of the proceeding
would have been different had the evidence been disclosed earlier.” State v. Tarin, No.
04-17-00198-CR, 2018 Tex. App. LEXIS 3055, at *18 (Tex. App.—San Antonio May 2,
2018, pet. ref’d) (mem. op., not designated for publication); accord Little, 991 S.W.2d at
867 (requiring the defendant to establish prejudice and stating that, under the present
circumstances, “he cannot show that the outcome of the proceeding would have been
different had that fact been disclosed earlier”). So, since both materiality and prejudice
depend on the probability of a different outcome had the data been revealed, undertaking
3 the analysis of one effectively encompasses the other. And, finally, in establishing if the
outcome would have differed, the defendant’s burden obligates him to assess his claim
“in light of all the evidence.” Ex parte Lalonde, 570 S.W.3d 716, 725 (Tex. Crim. App.
2019) (quoting Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002)). The mere
chance that the undisclosed data “might have helped . . . or affected the trial’s outcome”
is not enough. Id.
Here, appellant’s victims were two children with whom he lived. The charges
against him were instigated after a 16-year-old (Ivory) saw him and one of the two children
laying on a couch together and staring at the ceiling. Ivory characterized the activity as
odd or “weird” but saw no touching or the like. That resulted in her informing the children’s
mother about the incident. Eventually, Ivory contacted the police, as well. That
communication eventually led to an investigation and appellant’s ultimate prosecution.
During trial, Ivory related the foregoing incident to the jury. Little else was said by her,
though.
The alleged Brady information in question concerned a much earlier incident
between Ivory and appellant. Apparently, the latter sexually assaulted her, too, years
earlier. She described that assault during an exchange with one of the State’s
prosecutors in preparation for trial. Ivory then told her mother about the exchange with
the prosecutor and what she said. Yet, “her recall [of appellant’s assault upon her]
differed from her mother’s recall of what Ivory had told her . . . regarding this prior
extraneous offense,” according to the Brady notification given defense counsel. That
resulted in Ivory telling the prosecutor with whom she originally spoke that her present
recollection of the assault differed from her earlier recollection. Another prosecutor
4 uncovered this bit of information after the guilt/innocence phase of the trial resulted in a
guilty verdict and notified defense counsel of it.
Upon being afforded the Brady notification, defense counsel moved for a
continuance. So too did he request a mistrial, contending that “if I would have had that
material – had knowledge of that, then I could have used that maybe to impeach the
witness about her recount of some of the events that she testified to.” Because he lacked
it, he told the trial court he “would be asking for a mistrial.” Later, counsel added that “I’m
entitled to a mistrial on this case because I could have used that information . . . to
impeach her because she was testifying from her memory on things that occurred years
and years ago.” That “may have been an appeal to the Jury that she may have not
remembered correctly.” Though counsel conceded, while talking to the trial court, that
the substance of Ivory’s testimony merely encompassed the instigation of the police
inquiry into his assaults upon the two children, he nevertheless “could have used her poor
memory against her when she was testifying even about that because . . . she said that
she . . . caught them” laying on the couch looking at the ceiling. The trial court ultimately
denied the requests for a continuance and mistrial.
The substance of the foregoing discussion between defense counsel and the trial
court is determinative of appellant’s current complaint on appeal. Most notably, defense
counsel said nothing about the inculpatory evidence presented by the State while
demanding a mistrial and continuance. Again, his burden obligated him to address the
potential for a different outcome “in light of all the evidence.” He did not do that.
Instead, defense counsel merely focused on the allegedly impeaching nature of
Ivory’s “poor memory.” He sought to use her “poor memory” to impeach her on an issue
5 bereft of misconduct, that is, on whether she simply saw appellant and one of the children
laying on a couch staring at the ceiling. At best, that issue was tangential to appellant’s
guilt or innocence.
Additionally, his basis for thinking he could impeach Ivory related to some
difference in how she recalled appellant having sexually assaulted her years earlier.
Presumably, to reach his goal he would have had to broach that extraneous sexual
assault to the jury. Yet, missing from defense counsel’s argument below (and appellant’s
argument here) is explanation about how allowing defense counsel to inform the jury
about a distinct sexual assault on a third victim helped appellant. Nor can we contrive a
reasonable scenario in which divulging that tidbit of information would be more beneficial
to appellant’s cause. Defense counsel telling the jury to ignore Ivory’s testimony on a
tangential issue because she may not remember aspects of how appellant sexually
assaulted her seems somewhat harmful in our view.
Nor did defense counsel attempt to explain to the trial court how Ivory’s past and
present recollection of his assault upon her differed. The difference may or may not have
been substantive. It may or may not have dealt with an utterly unimportant factoid.
Instead, the trial court was left to speculate about that, as was this Court. Yet, such
speculation could have been avoided when the trial court offered appellant the opportunity
to examine Ivory, who had yet to leave the courthouse. Instead, defense counsel
responded to the opportunity with: “I – I’m not going to agree to that.” Apparently
surprised by that reply, the trial court asked: “You don’t want to hear from her?” “No, sir,”
counsel replied. He wanted “to get the investigation done because apparently if she had
memory problems, we’re going to need to talk to a third-party to identify that.” At hand
6 was the very chance to determine whether Ivory even “had memory problems,” but
appellant did not want to pursue it.
Simply put, defense counsel had an immediate chance to fulfill his burden to
establish the materiality of the Brady information in question. Yet, he let it go and
apparently assumed that there was a consequential difference between Ivory’s past and
present recollection of appellant’s distinct assault upon her. Then, he founded his entire
Brady complaint upon that unproven assumption. His decision resulted in the trial court
denying the Brady challenge, request for a mistrial, and continuance. It did so because
it viewed Ivory as “not much of a fact witness as to anything really” and as having “nothing
to offer about the incidences or anything that happened to the girls.” In other words, the
trial judge believed either that the undeveloped assumption about Ivory’s ability to recall
an extraneous offense was immaterial or that the State’s delay in revealing the matter
was nonprejudicial.
Given the circumstances previously discussed, the inculpatory testimony provided
by the two children appellant victimized, and appellant’s own consciousness of guilt
exemplified by his effort to flee and hide once State authorities removed the children from
the home, we cannot disagree with the trial court. Appellant did not establish a
reasonable probability that the trial’s outcome would have differed had the supposed
Brady evidence been revealed in a timely manner.
Issue Two – Ineffective Assistance of Counsel
As for the ineffective assistance of counsel matter, appellant contends that trial
counsel’s effort fell below the objective standard of reasonableness because counsel
mistakenly believed that 1) certain juvenile adjudications of appellant involving sexual
7 misconduct could not be used to enhance punishment and 2) appellant was eligible for
probation. Furthermore, this deficiency in counsel’s knowledge of the law allegedly was
prejudicial because it resulted in appellant rejecting plea offers from the State. We
overrule the issue.
The record contains evidence of trial counsel informing appellant about several
plea offers, appellant declining them, and appellant opting to risk trial. Missing though is
evidence of the plea terms being offered and the criminal counts to which those offers
pertained. We are left to speculate about that. Appellant’s six convictions resulted in
sentences from 50 years to life in prison. Whether the offers differed from those
sentences in any significant way is simply a matter of conjecture, given the record before
us. So too are we left to speculate about the substance of any conversations between
trial counsel and his client regarding those offers and the factors, if any, considered in
appellant’s decision to reject them. He may have been influenced by something trial
counsel said or he may have merely sought to “roll the dice.” We do not know.
“[C]laims of ineffective assistance ‘are not built on retrospective speculation.’”
Gallegos v. State, No. 07-17-00137-CR, 2017 Tex. App. LEXIS 11755, at *6 (Tex. App.—
Amarillo Dec. 18, 2017, pet. ref’d) (mem. op., not designated for publication). Yet, that is
what we are being asked to do, engage in retrospective speculation. Without evidence
about the terms of the plea offers, counsel’s discussion with appellant about them, and
the reasons why appellant rejected them, we cannot assess whether the mistakes
attributed to trial counsel created a reasonable probability, or probability sufficient to
undermine confidence in the outcome, that the result of the proceeding would have
differed. See Avila v. State, No. 07-18-00143-CR, 2019 Tex. App. LEXIS 6364, at *4–5
8 (Tex. App.—Amarillo July 24, 2019, no pet.) (per curiam) (mem. op., not designated for
publication) (so describing the prejudice needed to uphold a claim of ineffective counsel).
So, appellant failed to satisfy his burden to prove counsel’s mistakes prejudiced him, and
that was a prerequisite to succeeding upon a claim of ineffective assistance. Id.
The judgments are affirmed.
Brian Quinn Chief Justice
Do not publish.