Opinion filed August 30, 2019

In The

Eleventh Court of Appeals 

__________

No. 11-17-00231-CR

__________

MICAH LOY VASEK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-16-0495-CR

M E M O R A N D U M O P I N I O N

Appellant, Micah Loy Vasek, pleaded guilty to one count of driving while 

intoxicated—a third-degree felony due to two prior DWI convictions. He also 

pleaded true to an additional enhancement allegation. The trial court convicted 

Appellant, assessed his punishment at confinement for seventeen years and a $2,500 

fine, and sentenced him accordingly. In one issue on appeal, Appellant argues that 

the trial court abused its discretion in denying Appellant’s request for a new trial on 
2

the ground that the State failed to disclose a rebuttal witness’s criminal history. 

However, because we hold that the excluded evidence was not material, we overrule 

Appellant’s sole issue and affirm the trial court’s judgment.

Background Facts

Appellant was indicted with one count of driving while intoxicated. See TEX.

PENAL CODE ANN. § 49.04 (West Supp. 2018). The offense was enhanced to a thirddegree felony due to Appellant’s previous convictions for driving while intoxicated. 

See PENAL § 49.09(b)(2). At trial, Appellant waived his right to a jury, pleaded 

“guilty” to the indictment and to his prior convictions, and elected to have the trial 

court assess punishment. The trial court accepted Appellant’s plea and proceeded 

to the punishment phase, at which Appellant pleaded true to an enhancement 

allegation regarding his prior conviction for burglary of a habitation. Thus, the 

applicable range of punishment was increased to that for a second-degree felony. 

PENAL § 12.42(a) (West 2019).

The State presented ten primary witnesses during the punishment phase of 

trial, including multiple former and current officers with the Odessa, Midland, and 

Monahans police departments. Appellant’s former community supervision officer

from Ward County, Appellant’s former chemical dependency counselor, and the 

director of the Taylor County Substance Abuse Treatment Facility also testified. 

Collectively, the witnesses testified as to Appellant’s previous convictions, arrests, 

and probation violations for a litany of offenses, including driving while intoxicated, 

public intoxication, forgery, evading arrest, burglary, possession of marihuana, false 

identification, and failure to identify.

After Appellant presented defense witnesses, the State offered two additional 

rebuttal witnesses: an Ector County community supervision officer that had 

supervised Appellant in 2015 and 2016 and Rebecca May, Appellant’s adoptive 
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mother. Although May acknowledged that Appellant had a difficult childhood—

including being abandoned by both his biological parents and foster parents—May 

nonetheless testified that Appellant found himself in trouble with school, alcohol, 

and the law. May further testified that, at one point, Appellant beat the family dog 

to the point it had to be put down and that Appellant often ran away from home 

whenever he was told “no.” Lastly, May testified that Appellant had appeared to 

turn his life around by joining the Navy but that Appellant had failed to report for 

duty after a leave and was dishonorably discharged.1 After hearing the evidence, the 

trial court assessed Appellant’s punishment at confinement for seventeen years and 

a fine of $2,500.

Following the trial court’s judgment, Appellant learned for the first time that 

May apparently had a criminal record with previous theft convictions. Appellant 

filed a motion for a new trial, arguing that the State’s failure to disclose May’s 

criminal history violated Appellant’s constitutional right to due process. The motion

was overruled by operation of law. This appeal followed.

Analysis

In one issue, Appellant argues that the trial court erred in refusing to grant 

Appellant’s motion for a new trial. Appellant argues that he is entitled to a new trial 

under Article 40.001 of the Texas Code of Criminal Procedure and contends that the 

State’s failure to disclose May’s criminal history violated Appellant’s right to due 

process as the evidence could have been used by Appellant to impeach May’s 

testimony. See TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2018). Appellant 

argues that the evidence was material, since May’s testimony was influential in the 

trial court choosing to sentence Appellant to confinement for seventeen years—a 

 

1Appellant disputed that he was dishonorably discharged; Appellant proffered that he had received 

a general discharge.
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sentence in the upper range of possible punishment for Appellant’s crime. 

Conversely, although the State acknowledges that its failure to disclose May’s 

criminal history to Appellant constituted a failure to disclose favorable impeachment 

evidence, the State argues that the evidence was not material. Instead, the State 

argues that, given the “sheer wealth of evidence presented at the punishment trial” 

by witnesses other than May regarding Appellant’s “long career of disregarding the 

rules of society,” even had the impeachment evidence been timely disclosed to 

Appellant, the outcome at trial would not have been different. We agree.

We review a trial court’s denial of a motion for new trial under an abuse of 

discretion standard. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). We 

view the evidence in the light most favorable to the trial court’s ruling and will not 

overturn a trial court’s decision to deny a motion for new trial unless the decision 

falls outside the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 

112 (Tex. Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. 

App. 2004)).

Article 40.001 of the Texas Code of Criminal Procedure states that a “new 

trial shall be granted an accused where material evidence favorable to the accused 

has been discovered since trial.” CRIM. PROC. art. 40.001. To obtain relief under 

Article 40.001, the defendant must satisfy the following four-prong test:

(1) the newly discovered evidence was unknown or unavailable 

to the defendant at the time of trial;

(2) the defendant’s failure to discover or obtain the new evidence 

was not due to the defendant’s lack of due diligence;

(3) the new evidence is admissible and not merely cumulative, 

corroborative, collateral, or impeaching; and

(4) the new evidence is probably true and will probably bring 

about a different result in a new trial.
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State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017). Thus, 

impeachment-only evidence will not require a new trial under Article 40.001.

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.” Brady v. Maryland, 

373 U.S. 83, 87 (1963); see also Ex parte Lalonde, 570 S.W.3d 716, 724 (Tex. Crim. 

App. 2019). Thus, Brady is violated when three requirements are satisfied: (1) the 

State suppressed evidence; (2) the suppressed evidence is favorable to the defendant; 

and (3) the suppressed evidence is material. Lalonde, 570 S.W.3d at 724. 

“Incorporated into the third prong, materiality, is a requirement that [the] defendant 

must be prejudiced by the state's failure to disclose the favorable evidence.” Id.

(alteration in original) (quoting Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. 

App. 2006)).

“Favorable evidence is any evidence that, if disclosed and used effectively, 

may make a difference between conviction and acquittal and includes both 

exculpatory and impeachment evidence.” Harm, 183 S.W.3d at 408. Impeachment 

evidence is “that which disputes or contradicts other evidence,” including evidence 

that can be used to impeach the State’s witnesses. Id.; see Lalonde, 570 S.W.3d at 

724–25 (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). “[E]vidence is 

material only if there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985); see also Lalonde, 570 S.W.3d at 

724. “A ‘reasonable probability’ is a probability sufficient to undermine confidence 

in the outcome.” Bagley, 473 U.S. at 682; see also Lalonde, 570 S.W.3d at 724. 
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“Materiality is determined by examining the alleged error in the context of the entire 

record and overall strength of the state’s case.” Harm, 183 S.W.3d at 409.

“Under Brady, the defendant bears the burden of showing 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.” Hampton v. State, 86 S.W.3d 

603, 612 (Tex. Crim. App. 2002). The mere possibility that the undisclosed 

information might have helped the defense or affected the trial’s outcome does not 

establish materiality. Lalonde, 570 S.W.3d at 725.

Here, we do not believe that Appellant has shown that the evidence is material

under Brady. See Harm, 183 S.W.3d at 409. Although May’s testimony may have 

shone a negative light on Appellant’s character and history, she was not alone in 

doing so. Instead, the State presented testimony from eleven other witnesses who 

testified as to Appellant’s long criminal history. As such, although Appellant’s 

sentence of seventeen years is in the upper portion of the possible range of 

punishment for a second-degree felony (two to twenty years’ imprisonment), even 

had May’s testimony been impeached, or even excluded, we do not believe it is 

reasonably probable that the trial court would have reached a different determination 

regarding Appellant’s sentence. See Saldivar v. State, 980 S.W.2d 475, 485–87 

(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding that trial court did not 

err in overruling motion for new trial because witness’s previously undisclosed theft 

conviction was not material to the outcome of the defendant’s trial); see also PENAL

§ 12.33(a); Lalonde, 570 S.W.3d at 724–26. We additionally note that the trial court 

sentenced Appellant at trial. Accordingly, the trial court was better able to determine 

whether impeachment evidence against May would have resulted in a different 

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

in refusing to grant Appellant a new trial. See Keeter, 74 S.W.3d at 37. We overrule 

Appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

KEITH STRETCHER

JUSTICE

August 30, 2019 

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating. 

 

2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.