COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00499-CR

JERRY LEE PITMAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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OPINION

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INTRODUCTION

Appellant Jerry Lee Pitman pleaded guilty to two counts of aggravated

sexual assault without an agreed punishment recommendation. The trial court 

sentenced Appellant to two consecutive life sentences. In three related issues, 

Appellant asserts that the trial court abused its discretion by denying his motion 

for new trial, in which he alleged that the State’s failure to disclose documents 

prior to his guilty plea and punishment hearing violated his due process and due 
2

course of law rights.1 Appellant specifically argues that the State violated the 

dictates of Brady v. Maryland by failing to disclose 3,000 pages of Child 

Protective Services (CPS) records containing among other documents notes 

from the complainant’s therapy sessions that were inconsistent with the 

complainant’s and the therapist’s trial testimony.2 See 373 U.S. 83, 83 S. Ct. 

1194 (1963). We affirm.

APPLICABLE LAW

In Brady v. Maryland, the United States Supreme Court 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.” 373 

U.S. at 87, 83 S. Ct. at 1196–97; see Pena v. State, 353 S.W.3d 797, 809 (Tex. 

Crim. App. 2011). The court of criminal appeals has held that to find reversible 

error under Brady, an appellant must show that (1) the State failed to disclose 

 

1Appellant asserts that “Texas provides constitutional protection consistent 

with Brady et. al.,” therefore we do not separately address his rights under the 

state constitution.

2Appellant also briefly refers to article 40.001 of the code of criminal 

procedure and the corresponding four-part newly-discovered evidence test for 

obtaining a new trial. Appellant did not raise this issue in his new-trial motion or 

at the new-trial hearing, however. Because Appellant complains on appeal that 

the trial court erred by denying his motion for new trial, he must have raised his 

newly-discovered evidence claim during the new-trial hearing to preserve the 

complaint for appellate review. Because he did not, he has forfeited this 

complaint on appeal. See Tex. R. App. P. 33.1; Keeter v. State, 175 S.W.3d 

756, 759–61 (Tex. Crim. App.), cert. denied, 546 U.S. 852 (2005).
3

evidence, regardless of the prosecution’s good or bad faith; (2) the undisclosed 

evidence constitutes exculpatory or impeachment evidence that is favorable to 

him, that is, if disclosed and used effectively, the evidence may make a 

difference between conviction and acquittal; and (3) the evidence is material, that 

is, it presents a reasonable probability that had the evidence been disclosed, the 

outcome of the proceeding would have been different. Pena, 353 S.W.3d at 809, 

812; Harm v. State, 183 S.W.3d 403, 406, 408 (Tex. Crim. App. 2006). We 

analyze an alleged Brady violation “in light of all the other evidence adduced at 

trial.” Hampton v. State, 86 S.W.3d 603, 612–13 (Tex. Crim. App. 2002).

We review a trial court’s ruling on a motion for new trial for an abuse of 

discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Holden 

v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). We view the evidence in 

the light most favorable to the trial court’s ruling and uphold it if it was within the 

zone of reasonable disagreement. Webb, 232 S.W.3d at 112. We do not 

substitute our judgment for that of the trial court, but rather we decide whether 

the trial court’s decision was arbitrary or unreasonable. Id.; Holden, 201 S.W.3d 

at 763.

PROCEDURAL AND FACTUAL BACKGROUND

In 2009, the State charged Appellant with sexually assaulting S.P., a child 

younger than fourteen years of age, on two occasions in 2008. On August 9, 

2010, Appellant waived a jury trial and pleaded guilty to the two counts without a 
4

recommendation on punishment. Following Appellant’s plea, the prosecutor 

advised that,

initially during her disclosures the victim only disclosed two incidents 

of aggravated sexual assault, and that’s why the indictment has two 

counts. However, I spoke with the victim last Monday and she 

disclosed sexual misconduct on the part of [Appellant] from age nine 

to age twelve, and I immediately picked up the phone to call 

[defense counsel] who wasn’t available at the time, but I did send 

him an e-mail just to satisfy my Brady duties.

Appellant acknowledged receiving the email. The trial court stated that he would 

grant Appellant a recess before his cross-examination of S.P. if he needed one.

The next day, the State presented evidence that twelve-year-old S.P. 

delivered a baby boy at a local hospital in May 2009. After initially claiming she 

did not know who the baby’s father was, S.P. reluctantly told a nurse that the 

baby’s father was her stepfather, Appellant. The nurse contacted CPS, and 

subsequent DNA testing confirmed that Appellant was the baby’s father.

CPS Investigator Kathy Meyer testified that she met with S.P. at the 

hospital after the baby’s birth and that S.P. described in detail—once to Meyer 

and once to Meyer and Detective Alan Killingsworth—how Appellant had sexual 

intercourse with her two times between June and September 2008 at their home, 

where they lived with S.P.’s four half-siblings and Appellant’s parents and 

brother.

Ashlee Bowles testified that she was a CPS caseworker for this family and 

that she met with Appellant in April 2010 while he was incarcerated. Appellant 
5

told Bowles that he was “cracked out” when the abuse occurred and that it never 

would have happened “at least six times” if he had been sober.

The next day, Appellant objected to any testimony by S.P. regarding any 

sexual abuse not alleged in the two-count indictment, asserting that he had 

requested notice of extraneous offenses a year earlier (which the State 

disputed). The prosecutor reiterated that she had not been aware of the 

additional sexual abuse until the Monday before, when S.P. told her. The 

prosecutor explained that she had called Appellant’s counsel that same day, and

upon learning that he would be out of the office for a few days, she sent him an 

email. Defense counsel, having previously acknowledged receiving the email,

stated that he did not think the State had acted in bad faith but that “the purpose 

of the notice is to allow us to prepare” and that “if we know simply that there’s 

sexual abuse and don’t know anything else, I don’t know how we can prepare.” 

The trial court ruled that, in light of caseworker Bowles’s unobjected-to testimony 

that Appellant had admitted to six incidents of abuse, he would allow S.P. to 

testify to six incidents and that he would grant Appellant a continuance before 

cross-examination if requested.3

 

3We note that the trial court offered Appellant a continuance after Appellant 

objected that he had not received 404(b), 37.07, and 38.37 notice of the 

extraneous offenses. See Tex. R. Evid. 404(b); Tex. Code Crim. Proc. Ann. arts. 

37.07 (West Supp. 2011), 38.37 (West Supp. 2011). The nondisclosure of 3,000 

pages of CPS documents had not yet been discovered, therefore, it could not 

have been the basis for a continuance. We do not find persuasive the State’s 

assertion that Appellant failed to preserve error on his Brady claim for failing to 

seek a continuance at this juncture.
6

S.P. testified that Appellant first touched her inappropriately when she was 

nine years old. When the prosecutor asked about other instances, S.P. 

responded, “Well, I know that it happened almost all the time.” S.P. then testified 

that Appellant first had sexual intercourse with her when she was eleven years 

old. S.P. described the incident and explained that she was shocked the first 

time but that as she got older she “just g[o]t used to it.” S.P. testified that a CPS 

caseworker came to their house in 2008 (in response to a referral of five children 

living in a dilapidated house) and that the caseworker told Appellant to stop 

sleeping in the same bed as S.P. In response, Appellant began picking up S.P. 

from school early and having intercourse with her in her grandmother’s bed when 

no one was home but an uncle. S.P. testified that Appellant “put his penis inside 

[her] privates” the same summer that she became pregnant and that the last time 

was one week before the baby was born. The prosecutor then elicited testimony 

from S.P. that she told “the CPS person” that it only happened twice because she 

was scared, because she did not want anything bad to happen to her stepfather, 

and because she did not want her brothers and sisters to get hurt and hate her.

On cross-examination, Appellant elicited from S.P. that she gave a 

November 2009 videotaped interview and that she did not tell the CPS 

interviewer about the other sexual abuse incidents about which she had testified. 

When Appellant tried to introduce the DVD as impeachment evidence, however, 

the State objected that he had not laid the proper predicate, and the trial court 

agreed. Appellant then elicited testimony from S.P that she told both Kathy 
7

Meyer and Detective Killingsworth at the hospital that the sexual abuse 

happened on only two occasions. He also elicited the following testimony:

[Defense Counsel]: Q. And so then you — you went ahead 

and told them at that time that you were telling the truth; is that right?

[S.P.] A. Yes, sir.

Q. But today you’re saying that that really wasn’t the truth; is 

that right?

A. Sir, it was the truth. But honestly, I didn’t want to tell 

everything because I don’t like to get people in trouble.

. . . . 

Q. [Y]ou later had a chance to talk to CPS and did talk to 

CPS. Right?

A. Yes, sir.

Q. And you never explained any of this to them at that point in 

time, did you?

A. No, sir. 

When S.P. finished testifying, Appellant’s counsel asked for a short recess but 

stated, “I don’t contemplate asking — I don’t want a continuance, I want to get it 

done, but I don’t want to —.” 

When the hearing resumed, Laura Greuner testified that she was a 

licensed clinical social worker and S.P.’s therapist. Greuner testified that she 

diagnosed S.P. with Post-Traumatic Stress Disorder (PTSD) and explained that 

PTSD “is an anxiety disorder that people get when they go through serious 

traumas where [either their] life is threatened or the integrity of their body is 
8

threatened. And that’s how sexual abuse comes into it.” Greuner testified that 

S.P. exhibited signs that were consistent with sexual abuse, such as anxiety and 

nightmares. Greuner testified that S.P. will have issues associated with her 

stepfather’s sexual abuse for the rest of her life. On cross-examination, 

Appellant’s counsel elicited testimony from Greuner that S.P. would be able to 

“have times when she enjoys a normal life just like she does now.”

In his case in chief, Appellant presented evidence that he had an IQ of 77,

placing him in the borderline range of intellectual functioning; that he could be a 

productive citizen if provided structure and supervision; that he had been a hard 

worker at times; and that he had been a good father in many respects. 

Appellant’s defense counsel argued the following in closing argument: 

[T]he evidence establishes without any doubt that he’s — that he’s 

guilty of this offense. So we don’t argue with that. That’s why we 

pled guilty. I think the evidence supports that. 

However, as the Court knows from my evidence in court, this latebreaking evidence of other bad things that’s just appeared recently 

the last week is something that I think that the Court in judging 

credibility can rightly give little weight to because I think — I’m 

suspicious anytime evidence appears just at the last minute. And I

think the Court would be warranted in being suspicious of the 

evidence that appears at the last minute about other things that 

supposedly happened that weren’t known and weren’t talked about.

[T]he testimony of Detective Killingsworth and Kathy Meyer and the 

nurse about what was said to them by [S.P.] and about these two 

experiences that Maureen has talked about is quite specific. 

. . . .

When you have somebody at the time giving that — those details 

and giving it right after something dramatic like giving birth has 
9

occurred, I think you’ve got reliability and trustworthiness in those 

statements to a certain extent, but I think you have — you have that 

especially when you have the details. 

This other late-breaking stuff, I would just ask the Court not to — not 

to give that — I’d ask don’t give it any weight. But for whatever it is, 

it certainly never appeared — none of the other State’s witnesses 

said anything about it, so I think it’s to be given little weight.

One week later, the trial court found Appellant guilty on both counts and 

sentenced him to two consecutive life sentences. On September 16, 2010, 

Appellant filed a motion for new trial, and the trial court held a hearing on October

1, 2010.

At the motion for new trial hearing, Appellant’s counsel elicited testimony 

from attorney Joe Steimel that Steimel represented Appellant in his civil parentchild termination proceedings. Steimel testified that on August 5, 2010, during 

Appellant’s punishment hearing, he received an email from an assistant district 

attorney who represented CPS, stating that the “de-identified file” was ready.

Steimel testified that six or seven days later he picked up the records, that he 

was told that there were 3,300 pages of documents, and that he had provided 

those documents to Appellant shortly before Appellant filed his motion for new

trial on September 16, 2010.

The lead prosecutor testified that the District Attorney’s Office had an open 

file policy except that “as criminal district attorney we represent [CPS], and they 

are separate and apart from the felony prosecutors or the misdemeanor 

prosecutors.” The prosecutor testified that there were two proceedings pending 
10

against Appellant—the criminal proceeding and the CPS petition to terminate his 

parental rights. She explained that she had “nothing to do with” the civil side of 

the office representing CPS because “the civil side of our office that represents 

the [CPS] has attorney/client privileges, and I certainly don’t want to divulge any 

information that is exchanged between the attorney and [CPS].” The prosecutor 

explained that she subpoenaed CPS records related to Appellant’s case directly 

from the custodian of records for CPS and did not “go over to the other side of 

the office to get any records,” “to cover [herself] with regard to Brady and [her] 

duties as an attorney” and to “cover [herself] that [she] requested everything 

that’s related to the criminal case to [her] office so that it [could] be viewed by the 

defense.”

The prosecutor testified that at some point Appellant’s counsel 

subpoenaed essentially the same records and that a CPS representative called 

and asked the prosecutor to provide Appellant’s counsel with a copy of the 

documents already provided to the prosecutor by CPS. Appellant’s counsel 

agreed, and the prosecutor provided copies of all the CPS documents she had 

received from CPS, which was approximately 150 pages.

ANALYSIS

Appellant contends that the trial court erred by denying his motion for new 

trial. The basis of Appellant’s claim is that, after his sentencing hearing, he 

discovered (based on documents received from his civil, termination attorney) 

that the prosecution had failed to disclose 3,000 pages of impeaching and 
11

exculpatory documents (that were, at all pertinent times, located in the files of the 

Criminal District Attorney’s Office) and that, therefore, the State violated the 

dictates of Brady v. Maryland.

4

 Despite Appellant’s reference to exculpatory 

materials, he does not identify or discuss any undisclosed exculpatory evidence. 

Thus, we address only the impeachment value of the undisclosed documents.

The due process clause requires the prosecution to disclose only evidence 

that is (1) favorable to the defendant and (2) material either to guilt or 

punishment. United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379 

(1985); Brady v. Maryland, 373 U.S. at 87, 83 S. Ct. at 1196–97. Because 

Appellant fails to demonstrate that the documents were material to his guilt or 

punishment, the State was not obligated to disclose the documents to the 

defense. We nonetheless briefly discuss the disclosure practices highlighted in 

this case.

 

4Citing Ex parte Lewis, Appellant asserts that “Texas recognizes that Brady

protects persons accused of crimes from the withholding of material exculpatory 

and impeaching evidence even in the context of guilty pleas.” See 587 S.W.2d 

697 (Tex. Crim. App. 1979). In United States v. Ruiz, however, the United States 

Supreme Court held that neither Brady nor the federal constitution require 

prosecutors to disclose impeachment information prior to entering into a plea 

agreement with a defendant. 536 U.S. 622, 625–33, 122 S. Ct. 2450, 2453–57 

(2002). Because the State does not raise Ruiz and because addressing Ruiz is 

not necessary to the resolution of the issues as framed by the parties, we do not 

decide the applicability of Ruiz to Appellant’s guilty pleas and three-day 

punishment hearing. See Ex parte Masonheimer, 220 S.W.3d 494, 509 n.22

(Tex. Crim. App. 2007); id. at 513 n.20 (Keller, P.J., dissenting).
12

First Brady Prong

Under Brady v. Maryland, the State has a constitutional duty to disclose to 

a defendant material, exculpatory and impeachment evidence in its possession. 

See Pena, 353 S.W.3d at 810. This duty also requires the State to learn of 

Brady evidence known to others acting on the State’s behalf in a particular case. 

Harm, 183 S.W.3d at 406 (citing Kyles v. Whitley, 514 U.S. 419, 437–38, 115 S. 

Ct. 1555, 1567–68 (1995)); Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. 

App. 1997), cert. denied, 525 U.S. 873 (1998) (noting that Brady requires the 

State to disclose material exculpatory evidence in the possession of police 

agencies and other parts of the prosecutorial team). The State does not have 

such a duty if the defendant was actually aware of the evidence or could have 

accessed it from other sources. Pena, 353 S.W.3d at 810. 

Although we decide this appeal on a different issue, two items in the record 

have given us pause. One of our concerns mirrors that expressed by the trial 

court at the new-trial hearing: 

THE COURT: [I]’m looking at the subpoenas that the State 

issued for pseudonym records, [Appellant’s] records, and [his 

mother’s] records. For the record, they were filed with the clerk on 

June the 15th. Each one reads as follows: Please furnish instanter 

any and all records pertaining to the following individuals, and then 

there’s one for each of the three.

Ms. [Prosecutor], do you have any reason why that broad 

request would not have included all records that CPS had? I mean, 

it doesn’t say criminal prosecution, it doesn’t say civil, it just names 

persons. I mean, it’s obvious just from the volume of records that 

you didn’t get everything you subpoenaed. I mean, I don’t 

understand how that would — I mean, I think you subpoenaed them 
13

and then the record indicates you gave [Appellant] just a copy of 

what you got. But —

[The State]: Right. I haven’t compared the two. Although I’ve 

looked at the two —

THE COURT: Right.

[The State] — I haven’t compared them side by side. But my 

intent was to receive any and all records —

THE COURT: Well, I mean, it’s obvious that your records that 

you and [defense counsel] worked off of was about an inch thick and 

that other is a banker’s box full of records. 

[The State]: That’s correct. But I don’t know what records 

pertained to the other four children that I didn’t reference in my 

subpoena or Baby [M] or any of that or the psychological or — I’m 

not quite sure. 

THE COURT: So you’re — are you — do you think State’s 

Exhibit No. 1 [the undisclosed 3,000 pages of materials] then 

contains records referring to all the children?

[The State]: Yes.

THE COURT: It doesn’t appear to me that [the CPS 

representative] honored the subpoena. So I would like in the future, 

rather than allowing CPS to provide the records by delivering them 

to an investigator, I want a CPS records custodian here to swear to 

the truth of it. And if it turns out it’s not true, there’s something the 

Court can do to enforce that. All right.

We are also concerned that the District Attorney’s Office believes that an office 

policy—to keep its criminal case files “separate and apart” from its civil CPS case 

files—always absolves it from its Brady duties. See Harm, 183 S.W.3d at 407 

(“While we have held that CPS case workers may be law enforcement officers or 

state agents in some circumstances, an examination of the entire record is 
14

required to determine whether a CPS employee was a state agent in a given 

situation.”) (footnotes omitted). Again, however, resolution of these two matters 

is not necessary to the disposition of this appeal.5 See Tex. R. App. P. 47.1.

Second Brady Prong

To succeed on a Brady claim, Appellant must 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.” Pena, 353 S.W.3d at 811 (quoting Bagley, 473 U.S. at 

676, 105 S. Ct. at 3375). Favorable evidence includes impeachment evidence, 

which is evidence that disputes, disparages, denies, or contradicts other 

evidence. Id. at 812; Harm, 183 S.W.3d at 408.

While Appellant makes much of the fact that the undisclosed documents 

total approximately 3,000 pages,6he did not highlight any information or specific 

documents within those 3,000 pages at the motion for new trial hearing or now 

on appeal, except for thirty-three pages of Greuner’s therapy notes contained 

within the CPS documents. Other than the Greuner notes, Appellant simply 

describes categories of documents contained within the voluminous records and 

 

5We also decline to address the State’s several arguments that Appellant 

had independent access to the documents and that the State therefore had no 

duty to disclose the challenged documents. The facts underlying the parties’ 

arguments are not entirely clear, and resolution of these arguments is not 

necessary to the disposition of the appeal.

6Appellant’s counsel offered the documents as an exhibit. 
15

does not point this court to any specific documents.7 Thus, we address 

Appellant’s arguments in the context of what we will refer to as the Greuner 

therapy notes. See Tex. R. App. P. 38.1(i); Segundo v. State, 270 S.W.3d 79, 

106 & n.1 (Tex. Crim. App. 2008) (op. on reh’g) (reiterating that it is not an 

appellate court’s task to wade through voluminous records to verify an 

appellant’s claim), cert. denied, 130 S. Ct. 53 (2009); see generally Gomez v. 

State, No. 02-07-00284-CR, 2009 WL 806906, at *1 (Tex. App.—Fort Worth 

Mar. 26, 2009, pet. ref’d) (mem. op., not designated for publication) (overruling 

certain issues as inadequately briefed because appellant failed to “point this 

court to the specific documents on which he relies among the voluminous 

documents contained in the two boxes of sealed documents submitted to and 

held by this court”).

Appellant asserts that the undisclosed documents are favorable because 

they would have “strengthened the proposition that the extraneous instances of 

sexual abuse did not occur at all” and that “[t]he Greuner therapy notes including 

 

7Appellant states that the undisclosed documents included “among other 

things,” 

(1) [Dr. Greuner’s] therapy notes and reports, (2) documents relating 

to alleged child sexual abuse supposedly endured by [S.P.’s]

siblings, (3) documents detailing post-arrest CPS investigations of 

the entire [P.] household, including [Appellant’s] brother DeWayne, 

(4) records of incriminating statements made by [Appellant] to 

Ashley Bowles, a CPS caseworker and trial witness, and (5)

documents relating to the abuse of [M.P.], complainant’s younger 

sister, allegedly inflicted by her paternal uncle, DeWayne, who lived 

with both S.P. and [A]ppellant.
16

statements by S.P. contradicted and called into question the extent of the abuse 

testified to at trial and undermined the credibility of S.P. and Greuner.” Appellant 

does not, however, discuss specific statements contained in the Greuner notes, 

and he does not specify how he would have used the notes to challenge S.P.’s

and Greuner’s credibility.8 Indeed, our review of the notes indicates that, while 

arguably not as detailed as S.P.’s testimony regarding the extraneous sexual 

abuse, S.P.’s and Greuner’s testimonies were generally consistent with the 

notes.9 Appellant does not point us to any portion of the notes that “dispute[d], 

disparage[d], denie[d], or contradict[ed]” S.P. or Greuner’s testimony. To the 

extent Appellant focuses on the omission of statements, he does not further 

explain or point us to any specific portion of the notes that support his argument. 

Further, Appellant does not explain how Greuner’s therapy notes would have 

been admissible to impeach S.P. or Greuner; indeed, S.P. acknowledged that 

she had not told CPS about Appellant’s ongoing sexual abuse. See Tex. R. 

Evid. 613;10 see Pena, 353 S.W.3d at 809 (“[W]e require that the evidence 

 

8As the State points out, Appellant did not ask to see any of Greuner’s 

notes related to her direct-examination testimony. See, e.g., Tex. R. Evid. 612, 

613, 615.

9

For instance, Greuner states in one set of notes from September 2009 

that S.P. “talked about her dad. She would beg him to stop molesting her. She 

was afraid and told him so. She kicked him once and he did stop so she 

wonders why she couldn’t make him stop. . . . She said on one occasion she 

awoke and he was strangling her.” 

10Rule 613(a) provides: 
17

central to the Brady claim be admissible in court.”); Lempar v. State, 191 S.W.3d 

230, 240–41 (Tex. App.—San Antonio 2005, pet. ref’d) (“The State’s duty under 

Brady does not extend to turning over evidence that would not be admissible at 

trial.”). Thus, Appellant has not established that the undisclosed documents are 

favorable. 

Even assuming that the undisclosed documents contained some 

impeachment value, however, Appellant’s claims still fail because he is unable to 

satisfy the remaining materiality requirement. 

Third Brady Prong 

To succeed in his Brady claim, Appellant must also show that that there is 

a reasonable probability that, had the evidence been disclosed to the defense, 

the result would have been different. Ex parte Adams, 768 S.W.2d 281, 291 

(Tex. Crim. App. 1989). Appellant asserts that “[t]he test applied to a defendant 

who enters a guilty plea is . . . whether the failure to produce the hidden material 

would have given rise to a reasonable probability that but for the failure to 

 

In examining a witness concerning a prior inconsistent 

statement made by the witness, whether oral or written, and before 

further cross-examination concerning, or extrinsic evidence of, such 

statement may be allowed, the witness must be told the contents of 

such statement and the time and place and the person to whom it 

was made, and must be afforded an opportunity to explain or deny 

such statement. . . . If the witness unequivocally admits having 

made such statement, extrinsic evidence of same shall not be 

admitted. 

Tex. R. Evid. 613(a) (emphasis added). 
18

disclose the Brady material the defendant would not have entered the plea that 

he did.” See Tate v. Wood, 963 F.2d 20 (2nd Cir. 1992). Appellant asserts 

generally that the undisclosed documents were material because he “never 

would have pursued the course and strategy that he did had he known of the 

undisclosed material.”11

We note that while Appellant characterizes his criminal proceeding as a 

guilty plea for purposes of this materiality test, he later claims that his case “was 

in all other respects a contested punishment hearing.”12 To the extent 

Appellant’s criminal proceeding can be characterized as a guilty plea, we 

determine whether he would not have entered a plea but would have gone to trial 

because of the objective likelihood of being found not guilty. See Tate, 963 F.2d 

at 24. “[T]he inquiry is an objective one that is resolved largely on the basis of 

the persuasiveness of the withheld evidence.” Id. To the extent Appellant’s 

punishment hearing was more like a trial, we determine whether in light of all the 

 

11Appellant specifically argues that if the documentary evidence had been 

available and if he had known S.P. and Greuner would accuse him of additional 

misbehavior, he never would have waived his right to elect the jury to assess 

punishment, he may have testified in his own behalf, he may have called other 

family members or third-party witnesses, he could have investigated and called 

alibi witnesses, and he may have changed his plea in order to refute culpability 

and allow a jury to decide his fate.

12Citing Ex parte Lewis, Appellant asserts that in the context of Brady 

violations after guilty pleas, the court of criminal appeals has “found that the Due 

Process Clause and Texas’ due-course-of-law provision both operate to support 

the granting of a new trial under comparable procedural circumstances.” See

587 S.W.2d at 700. Ex parte Lewis, however, involved the failure to disclose 

exculpatory evidence. Id.; see Ruiz, 536 U.S. at 633, 122 S. Ct. at 2457.
19

evidence, it is reasonably probable that the outcome of the proceeding would 

have been different had the prosecutor made a timely disclosure. See Pena, 353 

S.W.3d at 812. A reasonable probability is one that is sufficient to undermine 

confidence in the outcome of the trial. Harm, 183 S.W.3d at 409. “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.” United States v. Agurs, 427 U.S. 97, 109–10, 96 S. Ct. 

2392, 2400 (1976); see Pena, 353 S.W.3d at 812. Ultimately, Appellant does not 

demonstrate that the undisclosed impeachment evidence was materially 

significant to either his guilty plea or to the outcome of his punishment hearing.

DNA testing confirmed that Appellant impregnated his twelve-year-old 

stepdaughter S.P. Appellant’s trial counsel argued during the punishment 

hearing that “the evidence establishes without any doubt that [Appellant’s] — that 

he’s guilty of this offense. So we don’t argue with that. That’s why we pled 

guilty. I think the evidence supports that.” While Appellant made this argument 

before he was aware of the undisclosed materials, he does not demonstrate 

objectively how or why his knowledge that S.P. did not disclose to CPS workers 

that she suffered ongoing sexual abuse by Appellant would have changed his 

plea. Thus, there is not a reasonable probability that but for the failure to 

produce the undisclosed information he would not have entered the plea but 

instead would have insisted on going to trial.
20

Further, S.P. testified to the impeaching facts; that is, she admitted on 

direct and cross-examination that she had omitted details of the extraneous 

incidents of sexual abuse when talking to CPS. “If the witness acknowledges 

impeaching facts during [her] testimony, nondisclosed information bearing on 

those facts is not ‘material’ under Bagley.” 42 George E. Dix & John M. 

Schmolesky, Texas Practice Series: Criminal Practice & Procedure ' 27:19 (3d 

ed. 2011) (citing Etheridge v. State, 903 S.W.2d 1, 20 (Tex. Crim. App. 1994)). 

Additionally, Appellant emphasized in his closing argument to the trial court that 

S.P.’s “late-breaking” testimony regarding the extraneous acts of sexual abuse 

should be viewed with suspicion and given little weight. See Wyatt v. State, 23 

S.W.3d 18, 27 (Tex. Crim. App. 2000) (holding that undisclosed pretrial 

statement by victim’s mother to investigator that defendant had not previously 

hurt the victim and would not sexually assault him was not material because the 

mother testified on direct examination to “materially the same” information and 

therefore the defendant was able to cross-examine her about the exculpatory 

facts); Saldivar v. State, 980 S.W.2d 475, 486 (Tex. App.—Houston [14th Dist.] 

1998, pet. ref’d) (holding that while defendant could have offered witness’s theft 

conviction, if disclosed, to impeach her credibility with jurors, witness’s 

inconsistent statements permitted defendant “to accomplish the same goal on 

cross-examination”).

In light of the DNA results, the trial court could have understandably found 

S.P. credible when she testified that the sexual abuse happened more than twice 
21

and when she explained why she did not report the ongoing abuse. In turn, the 

trial court could have reasonably found that S.P.’s earlier omissions regarding the 

ongoing sexual abuse did not undermine confidence in the outcome of the 

proceeding. Moreover, S.P.’s credibility was strengthened by the testimony of 

CPS caseworker Ashlee Bowles that Appellant recounted to her that he was 

“cracked out” when the abuse occurred and that it never would have happened 

“at least six times” if he had been sober. Thus, there is not a reasonable 

probability that, had the evidence been disclosed, the result of the proceeding 

would have been different.

For the above reasons, we hold that the trial court did not abuse its 

discretion by denying Appellant’s motion for new trial, and we overrule 

Appellant’s three issues.

Conclusion

Having overruled Appellant’s three issues, we affirm the trial court’s 

judgments.

ANNE GARDNER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

PUBLISH

DELIVERED: June 21, 2012