COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00539-CR

LIONELL FRAZIER, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1290856D

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MEMORANDUM OPINION1

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In one point, Appellant Lionell Frazier Jr. appeals his conviction of 

aggravated assault against a public servant with a deadly weapon, arguing that 

the trial court abused its discretion by denying his motion for mistrial when it was 

discovered during trial that the State had failed to disclose exculpatory evidence 

 

1See Tex. R. App. P. 47.4.
2

in violation of Brady v. Maryland, 373 U.S. 83, 87–88, 83 S. Ct. 1194, 1197 

(1963). We affirm.

Frazier used his vehicle to drag Arlington Police Officer John Thomas forty 

or fifty feet, causing the officer to suffer a hyperextension of his left leg. During 

trial on the offense, while cross-examining Officer Kellen Garrett, who had 

observed the encounter, Frazier learned for the first time that the statement of a 

non-police witness had been taken. Frazier rejected the State’s offer to continue 

the case and moved for a mistrial, which the trial court denied. This appeal 

followed.

The State argues that Frazier waived his complaint by failing to request a 

continuance after learning of the undisclosed witness statement. See Tex. R. 

App. P. 33.1(a)(1). The court of criminal appeals has held that, like other 

constitutional rights, the right to timely disclosure of exculpatory evidence is 

subject to procedural default.2 Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. 

App. 1999).

Assuming without deciding that Frazier preserved this point for our review, 

based on the record presented here, he cannot meet the three-pronged test to 

establish reversible error for a Brady violation, which requires Frazier to show 

 

2

In Wilson, the State disclosed the complained of evidence five days 

before trial, but appellant did not request a continuance before testimony began 

or before resting his case. 7 S.W.3d at 146. The court held that appellant’s 

Brady complaint was untimely because he failed to request a continuance until 

after jeopardy had attached and both sides had rested their cases-in-chief. Id.
3

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; and (3) the 

evidence is material, that is, there is a reasonable probability that had the 

evidence been disclosed, the outcome of the trial would have been different. 

Pena v. State, 353 S.W.3d 797, 809, 812 (Tex. Crim. App. 2011); Hampton v 

State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). We analyze an alleged Brady

violation “in light of all the other evidence adduced at trial.” Hampton, 86 S.W.3d 

at 612–13.

“Favorable evidence is that which, if disclosed and used effectively, ‘may

make the difference between conviction and acquittal.’” Pena, 353 S.W.3d at 

811 (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380

(1985)). Favorable evidence includes evidence that disputes, disparages, 

denies, or contradicts other evidence. Pena, 353 S.W.3d at 812. The mere 

possibility that the undisclosed evidence might have helped the defense or 

affected the outcome of the trial does not establish its “materiality” in the 

constitutional sense. Id.; Hampton, 86 S.W.3d at 612. Instead, the defendant 

must show that there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result would have been different. See Pena, 353 

S.W.3d at 812; Pitman v. State, 372 S.W.3d 261, 271 (Tex. App.—Fort Worth 

2012, pet. ref’d). We review a trial court’s denial of a motion for mistrial for an 

abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 

2004). 
4

Here, the parties do not dispute that the evidence was not disclosed before 

trial. Although the undisclosed statement itself was not included in the record, 

the trial court described its contents on the record outside the jury’s presence. In 

her statement, Rozzatta Williams indicated that she had observed an officer 

hanging out the window of a car while being dragged at least thirty-five yards 

down the street. She also stated that the suspect fought with the officers and 

was tased as he tried to run away.

3

The trial court stated that while this was “certainly not what this Court 

want[ed] to see regarding discovery,” Officer Garrett’s failure to disclose the

evidence did not rise to the level of incurable error sufficient to warrant a mistrial. 

Instead, the trial court ordered that the State was precluded from going into any 

information regarding Williams or the statement she had provided and instructed 

the jury to disregard Officer Garrett’s statement that an eyewitness’s account of 

the events had been recorded.

Based on the trial court’s description of the withheld statement, the record 

reveals that Williams’s eyewitness account favored the State, not Frazier, 

because her statement corroborated the officers’ accounts of the events in 

 

3Officer Thomas testified that he had reached into Frazier’s car after 

noticing a green substance appearing to be marijuana in Frazier’s lap and that 

Frazier had accelerated and forced him to hold onto the car as he was dragged 

forty or fifty feet with his torso hanging inside the driver’s side window. Officer 

Garrett testified that he had heard the sound of an engine accelerating and 

turned to see Officer Thomas’s legs hanging out the side of the moving car. Both 

officers testified that Frazier had resisted arrest and that they were forced to 

taser him multiple times before he could be detained.
5

question. See Pitman, 372 S.W.3d at 271 (holding that appellant failed to 

establish undisclosed notes were favorable when other witnesses’ testimonies 

were generally consistent with the undisclosed documents). Thus, Frazier is 

unable to establish that the undisclosed statement was favorable.

Furthermore, although Frazier asserts that the failure to disclose Williams’s 

statement “had a dramatic impact on [his] defense” and that his “entire defense 

strategy may well have been altered, or even discarded” if he had known about 

the statement, he does not explain how his knowledge of Williams’s statement 

would have changed his overall strategy, which was to discredit the officers, or 

why having such information would have affected his decision to plead not guilty. 

See Pitman, 372 S.W.3d at 272 (stating that appellant did not establish 

materiality prong when he failed to objectively demonstrate that he would have 

changed his plea had he known about the undisclosed evidence); Spruiell v. 

State, Nos. 05-01-01414-CR, 05-01-01415-CR, 2003 WL 21508441, at *4 (Tex. 

App.—Dallas July 2, 2003, pet. ref’d) (mem. op., not designated for publication)

(holding undisclosed statements not material when appellant did not explain how 

strategy would have changed if evidence had been disclosed sooner). Instead,

Frazier broadly asserts that the outcome of his case might have been different

had the information been timely disclosed. See Pena, 353 S.W.3d at 812 

(stating that the mere possibility that undisclosed information might have affected 

the outcome does not establish materiality); Hampton, 86 S.W.3d at 612 (same).
6

In light of the evidence supporting his conviction, Frazier’s speculation 

about what might have occurred is insufficient to establish with a reasonable 

probability that his decision to plead not guilty, his strategy at trial, and the 

outcome of his case would have been different had the information been 

disclosed sooner. See Pitman, 372 S.W.3d at 272; Owens v. State, 381 S.W.3d 

696, 700–01 (Tex. App.—Texarkana 2012, no pet.) (stating that due process 

rights are violated when “a prosecutor fails to disclose evidence favorable to the 

accused that creates a probability sufficient to undermine confidence in the 

outcome of the proceeding”).

Moreover, in light of the officers’ testimonies matching that of Williams’s 

account of the events, the cumulative and redundant nature of her statement 

militates against its materiality. See Lopez v. State, No. 13-12-00076-CR, 2013 

WL 3326829, at *3 (Tex. App.—Corpus Christi June 27, 2013, no pet.) (mem. 

op., not designated for publication) (stating that information in undisclosed 

recordings was cumulative and not material when witness acknowledged same 

information during testimony); Saldivar v. State, 980 S.W.2d 475, 485 (Tex. 

App.—Houston [14th Dist.] 1998, pet. ref’d) (holding witness’s undisclosed theft 

conviction not material when witness’s testimony was cumulative of other 

witnesses’ testimonies). Thus, having failed to show a reasonable probability 

that the result of the proceeding would have been different had the evidence 

been disclosed, Frazier is unable to establish that the evidence was material. 

See Pena, 353 S.W.3d at 812; Pitman, 372 S.W.3d at 271.
7

Accordingly, because the trial court could have reasonably concluded that 

the alleged Brady evidence was neither favorable nor material to Frazier’s 

defense, we hold that it did not abuse its discretion by denying Frazier’s motion 

for mistrial. See Pena, 353 S.W.3d at 809; Hawkins, 135 S.W.3d at 76–77. 

Therefore, we overrule Frazier’s sole point and affirm the trial court’s judgment.

PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 14, 2014