In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-12-00290-CR 

JOSE PERALES, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 147th District Court 

Travis County, Texas 

Trial Court No. D-1-DC-12-904042, Honorable Clifford Brown, Presiding 

 

September 5, 2013 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Jose Perales appeals his conviction for aggravated assault. His sole issue 

concerns the trial court's refusal to grant him a mistrial due to a purported Brady1

violation. We affirm. 

Background

The dispute evolved around a conversation or interview conducted by the 

investigating detective. He was interviewing the mother (Suzie Rodriguez) of one of the 

 1

Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194,10 L.Ed.2d 215 (1963).
2

potential witnesses to the assault.2 That interview was recorded and transferred on to a 

“data disk.” Furthermore, the recording allegedly contained a statement by the 

detective informing Ms. Rodriguez that it was not his intent to prosecute her son. The 

statement was not included in the detective’s written report. And, appellant’s trial 

counsel represented that he had not been aware of that conversation or alleged 

utterance until the trial had begun and the detective was undergoing cross-examination. 

Consequently, appellant argued that the evidence was Brady material withheld by the 

State. This resulted in him orally moving for a continuance and a mistrial. A severalhour postponement in the trial was afforded counsel so that he could communicate with 

Rodriguez. However, a mistrial was denied him. 

Analysis3

Whether a trial court errs in denying a mistrial depends on whether it abused its 

discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.1999). It abuses its 

discretion when its decision falls outside the zone of reasonable disagreement. Murray 

v. State, 172 S.W.3d 782 (Tex. App.–Amarillo 2005, no pet.).

Next, per Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), 

the State is obligated to disclose to a defendant exculpatory and impeaching evidence 

in its possession. Brady, 373 U.S. at 87, 83 S.Ct. 1194; Pena v. State, 353 S.W.3d 797, 

 2

The assault consisted of appellant, while driving a vehicle, hitting a person riding a bike and 

failing to stop thereafter. At least two other persons were in the car, one of whom was the son of Susie 

Rodriguez.

3

To the extent that appellant may be contending that the trial court erred in overruling his motion 

for continuance, we note that the request was orally made. Being so, it did not comport with the 

applicable rules of procedure requiring a written motion containing factual allegations attested to by either 

the State or the defendant. TEX. CODE CRIM. PROC. ANN. art. 29.03 (West 2006) (specifying the 

requirements for a motion to continue in a criminal case). Thus, appellant failed to take the steps 

necessary to perfect the matter for review. Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 

1999) (stating that nothing is preserved for review by an oral motion for continuance). 
3

810 (Tex. Crim. App. 2011). However, the burden lies with the accused or complainant 

to prove that the duty was not met. Pitman v. State, 372 S.W.3d 261, 264 (Tex. App.–

Fort Worth 2012, pet. ref’d). This requires him to establish that 1) the State failed to 

disclose the pertinent evidence, 2) the undisclosed data is exculpatory or susceptible to 

being used as impeachment evidence favorable to the accused, and 3) the evidence is 

material. Pena v. State, 353 S.W.3d at 809. Brady, however, does not require the 

State to independently seek out exculpatory evidence on behalf of the accused or to 

furnish him with exculpatory or mitigating evidence that is fully accessible to him from 

other sources. Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006). 

Application of these rules leads us to reject appellant’s contention for several reasons.

First, we have not been cited to the location within the appellate record of the 

“data disk” in question. Nor did our review uncover the location of the disk or a 

transcription of the interview in question. Without either the disk or a transcription of its 

contents being admitted or otherwise being made a part of the record, we cannot 

accurately assess its tenor. In other words, it is rather difficult to say whether evidence 

constitutes Brady material if we cannot see what that evidence is. 

Second, counsel for the State represented to the trial court: 

The State - - at this time, I am making the representation as an officer of 

the Court that I personally had that data disk available for counsel to 

review and specifically – because in that particular data disk that I 

reviewed I do not recall Ms. Rodriguez’s statement at all. I do not recall 

reviewing it. But specifically in that data disk we also have David 

Martinez’s second audiotaped conversation, and so that specifically was 

turned over to Mr. Wannamaker as part of the discovery process.

I didn’t sit down with him and have him – I didn’t sit down with him the 

entire time that he viewed it, but that data disk was turned over to him to 

review. And if he missed it like I did, that’s completely different from saying 

we were hiding something from them.
4

* * *

And, Judge, again, just to make sure the record is clear, he was given that 

disk to review as well.

Defense counsel responded with the following:

When I went over to the DA's office, I requested an opportunity to hear 

and see disks. They were made available to me and then I sat at the 

little cubby station and watched videos. At no time was I given an

audiotape or told that there was an audiotape in there of Susie. I had no 

reason to be looking for it because it's not in the reports. We have e-mail 

traffic, we have conversations, we have it on the record my requests for

Brady and Giglio information and they have been very forthcoming about 

the immunity and the promises made to Fat Face, but not to the 

Rodriguezes.

[Emphasis added].

This exchange is quite pertinent because of its relationship to the first element of 

the burden appellant had to satisfy. Again, it was his obligation to prove that the State 

withheld the evidence. Given the rather factual nature of that element, its establishment 

depended upon the presence of evidence. That is, the trial court could hardly find that 

the State did not disclose the data without some evidence showing that the data was 

not disclosed. So, assuming arguendo that unsworn comments from an attorney are 

evidence, Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex. App.–Austin 1990, 

no writ) (stating that unsworn statements from counsel generally are not evidence), the 

trial court had before it a scenario likening to what has come to be known as “he said, 

she said.” And, most importantly, it was free to believe the State's attorney in rejecting 

the demand for a mistrial. Simply put, it had evidence before it upon which it could have 

decided that the alleged Brady material was indeed disclosed by the State. And, we

must defer to the trial court's resolution of fact issues. See Guzman v. State, 955 

S.W.2d 85, 89 (Tex. Crim. App. 1997) (stating that when issues involve mixed questions 
5

of law and fact, we review the issues of law de novo but defer to the trial court's 

determination of historical fact).

Third, the foregoing exchange between the State's attorney and defense counsel 

is also telling for one other reason. As indicated by that portion of the defense counsel's 

utterance, he acknowledged that he received disks from the State. That he did not 

receive “audiotapes” as well is irrelevant since the conversation in question was on a 

“data disk.” (Emphasis added). Thus, he had the means to uncover the evidence about 

which he complains, and Brady is not violated when the exculpatory or mitigating 

evidence is fully accessible to appellant from other sources. Harm v. State, 183 S.W.3d 

at 407.

Nor is it of import that the State supposedly neglected to direct him to the 

dialogue between the investigating officer and Suzie. Again, the State's burden is to 

release Brady material to the defendant. We know of no authority obligating the 

prosecutor to counsel the defendant or his attorney about what within the stack of 

material provided may or may not be interpreted in some way or another as Brady

material. Nor did appellant cite us to any such case.4

 

Given that the record before us contained sufficient information upon which the 

trial court could have held that appellant failed to establish the first element of a Brady

violation, we cannot say that the refusal to grant a mistrial fell outside the zone of 

reasonable disagreement. Therefore, the decision was not an instance of abused 

discretion. 

 4

See Taylor v. State, 93 S.W.3d 487 (Tex. App.–Texarkana 2002, pet ref’d) (finding that the 

government is not required to facilitate the compilation of exculpatory material that could have been 

compiled by the defense.)
6

Appellant's issue is overruled, and the judgment is affirmed. 

Brian Quinn

Chief Justice

Do not publish.