Opinion issued August 3 0 , 2018

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 17 - 00571 - CR

——————————— TALAWRENCE DONYEA TE NNELL , Appella nt V. THE STATE OF TEXAS , Appell e e On Appeal from the 85th District Court Brazos County , Texas Trial Court Ca se No. 15 - 01993 - CRF - 852 MEMORANDUM OPINION  A jury found a ppellant Talawrence Donyea Tennell guilty of capital murder in the death of a seven

- month

- old baby girl

. See T EX . P ENAL C ODE § 19.03(a)(8). The court sentenced him to life in prison, without the possibility of parole. See id

. §§ 19.03(b ), 12.31(a)(2). Tennell filed a motion for new trial alleging that the State failed to disclose exculpatory evidence before trial and that the same evidence entitl ed him to a new trial

. After a hearing, the trial court denied th e motion

. On appeal, Tennell re - urges the grounds for his motion for new trial. He also contends that the trial court erred by admitting evid ence over his hearsay objection and by denying his request for an instruction o n the lesser

- in cluded offense of manslaughter. We conclude that Tennell waived his hearsay objection, and he has failed to show that he was entitled to a jury instruction on manslaughter . He also has failed to prove that the State withheld evidence or tha t his failure to discover the evidence at issue was not caused by his own lack of diligence

. To the extent he has

 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Tenth District of Texas to this Court. See Misc. Docket No. 17

– 9066, Transfer of Cases from Courts of Appeals (Tex. June 20, 2017); see also T EX . G OV ’ T C ODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between precedent of that court and that of this court on any relevant issue. See T EX . R. A PP . P. 41.3.3

attempted to raise constitutional arguments on appeal, they have been waived. Accordingly, w e affirm the trial court’s judgment. Background A ppellant Talawrence Donyea Tennell lived wit h his girlfriend Crystal Harris . Two children lived with them , Harris’s seven

- month

- old daughter, Hailey , and her five

- year - old daughter , Riley

. One afternoon, Harris left Hailey at home , and she asked Tennell t o w atch the baby . When Harris returned home approximately two hours later , Tennell was holding Hailey

. The baby was unresponsive, and her forehead was bruised. Harris started CPR and called 911. An ambulance responded, and Hailey was transported to the hos pital where she was later pronounced dead

. Her cause of death was determined to be blunt

- force injuries

. That same evening , d etective s of the Bryan Police Department interviewed Tennell

. He told the detectives that the previous evening , a plastic mouthwas h bottle containing liquid PCP (phencyclidine) burst in his p ants pocket . He claimed that the drug contact ed his skin, and he started to “trip” from it

. Tennell stated that Hailey was sleeping when Harris left, and subsequently he also fell asleep

. Accordi ng to his statement, when he woke, Hailey was on the floor, and she was unresponsive.4

Tennell was arrested and charged with Hailey’s murder. He was taken to the hospital, had blood drawn for a drug test , and was later booked at the Brazos County Jail. He was indicted on counts of capital murder, felony murder, and injury to a child. He pleaded not guilty , and the case proceeded to trial. Tennell’s defensive theory was that he was extremely intoxicated when he killed Hailey , due to transdermal absorption of a large dose of PCP that had leaked through his jeans. Harris testified that Tennell’s behavior was normal when he returned home on the evening before Hailey’s death. When Harris left the next day, Hailey was in the adult s ’ bedroom

. Upon her return appro ximately two hours later , Tennell was in the bedroom , holding Hailey

. There was blood on his shirt, and Hailey was unresponsive. Harris repeatedly asked Tennell what happened, but he did not respond. She stated that he “didn’t look normal.” During cross

- ex amination, defense counsel asked Harris whether she had ever seen or smelled PCP in her apartment while Tennell was there, whether she smelled PCP on his pants the night before Hailey’s death , and whether she was
aware that he sold drugs

. Harris stated tha t she was familiar with the smell of PCP from a prior relationship, but she had never smelled or seen PCP in her apartment while Tennell was there, including the night before and the day of Hailey’s death

. Office r R. Snell was one of the first officers to arrive at Harris’s apartment. He testified that he spoke with Tennell , who claimed that Hailey had fallen o f f the5

bed while sleeping. Tennell had difficu lt y answering questions, and Snell believed he was under the influence of “ some type of substance. ” Sn ell smelled PCP at the residence, and he recovered a travel

- sized mouthwash bottle from the bottom of the steps outside of the apartment. The bottle contained tobacco leaves , which Snell testified was consistent with a common method of smoking PCP. The bot tle tested positive for PCP. The emergency room physician who treated Hailey and the assistant medical examiner who performed the autopsy each testified. Hailey had sustained various fractures to her body and numerous fractures to her skull. Both witnesse s believed that Hailey’s injuries were not consistent with an accidental fall, but instead had been inflicted intentionally by a person. A c rime

- scene investigato r testified that she collected a pair of folded blue jeans from behind the front door of the apartment . The jeans were adm itted into evidence . A swatch cut from the jeans tested positive for PCP. A trained paramedic working in the medical jail division of the Brazos County Sheriff’s office , testified that her job was to assess the mental and phys ical status of inmates upon their arrival at the j ail. Medical intake was done for every booked inmate and included the completion of an “Initial Inmate Medical Interview” form. The form had space s for the inmate’s identifying information, and it included questions about medical history, allergies, prescribed medicine, and6

history of drug and alcohol use and treatment. The paramedic testified that the purpose of the interview was to ascertain the inmate ’s medical issues and to better treat the inmate in cas e “something happened in the jail.” The paramedic completed Tennell’s medical interview form when he arrived at the Brazos County Jail on the evening of Hailey’s death. Tennell admitted that he used PCP. The paramedic testified that when inmates admitted to drug use, she asked follow

- up questions to determine whether an inmate would “detox,” and whether there might be behavioral issues due to the drug use. When the paramedic asked follow

- up questions about Tennell’s drug usage , he said that he had been

smo king PCP since the beginning of the year, he smoked “a lot” each day, and he had last smoked PCP that same day. He further stated: “[I] probably have a lot of PCP in my system.” The paramedic recorded Tennell’s response s on the medical interview form , whic h was admitted into evidence over a hearsay objection

. B lood samples drawn from Tennell hours after Hailey’s death were positive for the presence of PCP

. The defense presented testimony from Dr. Mansoor Khan, an ex pert in pharmaceutical science with a spe cialization in drug delivery systems. He testified that based on his review of literature discussing the molecular structure of PCP and his knowledge of transdermal absorption , there is a “very high possibility ” that the substance could permeate through th e skin

. He further explained that side effects of7

high dosages of PCP could include disassociation, agitation, violence, coma, memory loss, and death. T he lead investigator in the case, Detective S. Davis of the Bryan Police Department, was not called to testify. Thus the jury never heard about Tennell’ s statement to Davis that he had spilled PCP on his pants the night before Hailey’s death. During trial, Tennell put on the jeans that had been offered into evidence to demonstrate to the jury that they were his. At the close of evidence, the trial court presented the parties a proposed jury charge which included instruction s on capital murder and the lesser

- included offense of felony murder based on the underlying offense of reckless injury to a child. Ten nell asked the court to also include instructions on the lesser

- included offenses of manslaughter, criminally negligent homicide, and felony murder based on the underlying offense of possession of a controlled substance. The court denied the requests. The trial court also denied Tennell’s request for an instruction on involuntary intoxication. During closing argument s , the State argued that Tennell “ wanted [ Hailey ] dead , ” and he had inten tionally killed her. Tennell ’s counsel argued that the State had not prove d its ca se beyond a reasonable doubt. Defense counsel also argued that PCP had been absorbed into his skin through the jeans , which were in evidence . The State objected to the argument , arguing that there had been no8

evidence of transdermal absorption through the jeans, or that Tennell had worn the m on the day of the murder. The court overruled the objection. Defense counsel argued that because Tennell was a “ PCP addict, ” he knew how PCP affected him. But “something different happened the day Hailey d ied ” ; Tennell took a larger dose of PCP than he had ever had before, and that dose “c ould have ” come from the PCP on the jeans. Defense counsel showed the jeans to the jury and argued that when they were collected, the jeans “had a huge wet stain” from the PCP . Counsel argued that the smell of PCP was still present on the jeans at the time of trial and that she found it “impossible to believe” that Harris had no idea that Tennell used and dealt drugs. Counsel asked, “How is it that other witnesses who are w alking into that house for the very first time immediately smell PCP . . . and she couldn’t?” Counsel argued that rather than Tennell being “totally normal” when Harris left the apartment, it made more sense that “he was already stoned out of his gourd.” T he jury found Tennell guilty of capital murder, and it found that he had used a deadly weapon to commit the crime. He was sentenced to life in prison. Tennell filed a motion for new trial, alleging that the State withheld evidence that Harris saw him w eari ng the PCP

- stained jeans before she left the apartment. After a hearing, t he trial court denied the motion for new trial. Tennell appeals.9 Analysis Tennell raises two issues relating to events during the trial

— the admission of hearsay evidence and the den ial of a jury instruction about a lesser

- included offense. We address these issues first. We then consider issues relating to Tennell’s motion for new trial and the allegation that the prosecution withheld evidence. Finally we address the waiver of two iss ues attempting to challenge the conviction with constitutional arguments made for the first time on appeal

. I. Medical intake interview form as hearsay Tennell argues that the trial court erred by admitting, over his objections, a page from his medical int erview form completed upon his admittance to the Brazos County Jail. T rial court s have broad discretion to determin e the admissibility of evidence , and we will find error only upon a showing of a clear abuse of discretion. Montgomery v. State , 810 S.W.2d 3 72, 378

– 79 (Tex. Crim. App. 1990); Roberts v. State , 29 S.W.3d 596, 600 (Tex. App.

— Houston [1st Dist.] 2000, pet. ref’d). As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion. Montgomery , 810 S.W.2d at 391. The State offered into evidence a page from the medical intake questionnaire completed by a trained paramedic working for the Brazos County Sheriff’s Office. Tennell objected to the exhibit as hearsay. The State argued that the document f ell under the hearsay exception for statements made for the purpose of medical10

diagnosis. See T EX . R. E VID . 803(4). Tennell argued that the document was prepared by law enforcement and therefore did not fall under the hearsay exception. The State responded that the questionnaire was a “recording” of Tennell’s statement, “just like a transcript would be.” The trial court overruled the hearsay objection. On appeal, the State argues that the questionnaire was admissible as a record of regularly conducted busi ness activity. See T EX . R. E VID . 803(6). It further contends, as it did at trial, that the exhibit was properly admitted as a statement made for medical treatment or diagnosis under Rule 803(4). Tennell argues that the paramedic did not testify as a recor ds custodian for the Brazos County Jail and the State failed to lay the proper predicate for the business

- records hearsay exception. However, the r ule provides that the predicate may be established by the custodian of records for the business or “another q ualified witness.” T EX . R. E VID . 803(6)(D); see also Melendez v. State , 194 S.W.3d 641, 644 (Tex. App.

— Houston [14th Dist.] 2006, pet. ref’d) . Tennell fails to provide any argument that the paramedic, despite not being described as a records custodian, was not a qualified witness to sponsor the evidence

. The paramedic specifically testified that she completed the medical in terview form based on knowledge that she acquired at the time it was imparted to her by Tennell. See T EX . R. E VID . 803(6)(A). She furthe r testified that it was a record that11

she created “regularly” as part of “the regular course of business at the jail.” See T EX . R. E VID . 803(6)(B) , (C). We conclude that the trial court would not have abused its discretion to admit the document pursuant to the business

- record exception to the hearsay rule. See T EX . R. E VID . 803(6); see, e.g. , Moyer v. State , 948 S.W.2d 525, 528 (Tex. App.

— Fort Worth 1997, pet. ref’d). When a document is admissible as a business record under Rule 803(6), statements contained within it nevertheless may be inadmissible hearsay

. Garcia v. State , 126 S.W.3d 921, 926 (Tex. Crim. App. 2004). If the record contains information from a person outside of the business who had no duty to report or to report accurately, such information i s not admissible unless there is an independent qualification for its admission under a hearsay exception. Id. at 926

– 27. That a statement was made for medical diagnosis or treatment can qualify as an independent basis for a statement’s admissibility under an exception to the hearsay rules. Id. ; see T EX . R. E VID . 803(4). A statement made for and reasonably pertinent to a medical diagnosis or treatment , and which “ describe s medical history; past or present symptoms or sensations; their inception; or their ge neral cause ” may be admissible as an exception to the rule against hearsay. T EX . R. E VID . 803(4)

. Tennell argues that he was not at the jail seeking treatment for a medical condition, and his statements therefore do not fall under the hearsay exception f or medical diagnosis or treatment. “Rule 803(4) is premised on the declarant’s desire12

to receive an appropriate medical diagnosis or tre atment, and the assumption that the declarant appreciates that the effectiveness of the diagnosis or treatment may depen d on the accuracy of the information provided.” Munoz v. State , 288 S.W.3d 55, 58 (Tex. App.

— Hou ston [1st Dist.] 2009, no pet.). A two
- part test is used to determine whether the declarant believed that his statements would be utilized for the purpose of hi s medical diagnosis or treatment and that the truthfulness of his statements can therefore be relied upon. Id. ; see Taylor v. State , 268 S.W.3d 571, 588

– 89, 591 (Tex. Crim. App. 2008). “ First, the statement must be made for the purpose of diagnosis or trea tment, and the declarant must know that it is made for the purp ose of diagnosis and treatment.” Munoz , 288 S.W.3d at 58 (citing Taylor , 268 S.W.3d at 588

– 89) . Second, the statement must be relevant to a medical diagnosis or treatment. Id. (citing Taylor , 2 68 S.W.3d at 591). If the record circumstantially supports an inference that the declarant understood the purpose of his statement to be for medical treatment or diagnosis, and the need to be truthful in his statement, it may be excepted from the rule agai nst hearsay under Rule 803(4)

. See Taylor , 268 S.W.3d at 585; see also Munoz , 288 S.W.3d at 58. Tennell relies upon Garcia v. State , 126 S.W.3d 921 (Tex. Crim. App. 2004), to support his contention that his statements were not made for the purpose of medi cal treatment or diagnosis. In Garcia , the Court of Criminal Appeals held that Rule 803(4) was inapplicable to statements made by the complainant to an13

employee of a women’s shelter because there was no evidence that the complainant had visited the shelter for the purpose of receiving a medical diagnosis or treatment, or that she actually received medical diagnosis or treatment from the shelter’s employees. 126 S.W.3d at 927. The facts of this case are distinguishable from Garcia
. T he trained paramedic tes tified that she worked in the medical division of the jail. She was responsible for assess ing the mental and physical status of incoming inmates to determine whether they had any particular medical needs , an d to provide informed treatment for inmates durin g their time at the jail. Unlike the circumstances of the complainant’s reports to a shelter employee as described in Garcia , t he paramedic in this case testified that questio ns about drug use were used to determine whether

“ the inmate may detox.” As part of the intake process , Tennell’s blood pressure and pulse were taken, he was asked about his allergies, medical history, current health problems, current physician, and prescribed medications. Although Tennell did not go to the jail for the purpose of medi cal treatment or diagnosis, the trial court reasonably could have inferred that the specific purpose of the paramedic’s questions was to determine whether Tennell was in need of medical treatment for a physical or mental condition, and that the circumstant ial evidence demonstrated that he answered the questions in cooperation with and in furtherance of that purpose. Accordingly, the trial court did not abuse its discretion by admitting the14

questionnaire or the statements contained therein. See Munoz , 288 S. W.3d at 58. W e therefore overrule Tennell’s appellate complaint about the admission of hearsay evidence

. I I . Lesser - included charge instruction Tennell was charged with capital murder for intentionally or knowingly causing the death of an individual unde r ten years of age. See T EX . P ENAL C ODE §§ 19.02(b)(1), 19.03(a)(8). The trial court’s proposed jury charge included a n instruction on capital murder and an instruction on the lesser

- included offense of felony murder based on the underlying offense of reck less injury to a child. See id. §§ 19.02(b)( 3 ), 22 .0 4(a)

. At the charge conference, Tennell requested additional instructions on the lesser offenses of manslaughter, criminally negligent homicide, and felony murder based on the underlying offense of posses sion of a controlled substance. The court denied the requests. Despite the option of convicting on the lesser

- included charge of felony murder, the jury found Tennell guilty of capital murder. On appeal, he challenges only the denial of his request for a m anslaughter instruction. Because the manslaughter instruction was requested at trial, if the denial of the instruction was an error we will reverse if “some harm” resulted. Nangurai v. State , 507 S.W.3d 229, 234 (Tex. App.

— Houston [1st Dist.] 2014, pet. r ef ’ d)

. A two
- part test is applied to determine whether a defendant is entitled to an15

instruction on a lesser

- included offense. See Cavazos v. State , 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). The first step is a question of law, which compare s the element s alleged in the indictment with the elements of the lesser offense to determine “if the proof necessary to establish the charged offense also includes the lesser offense.” Id. The second step of the analysis requires consider ation of whether there is some evidence that would allow a rational jury to acquit the defendant of the greater offense while convicting him of the lesser

- included offense. Id. at 383; Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). Tennell’s appellate brief acknowledges that a “ jury ’ s failure to find an intervening lesser

- included offense (one that is between the requested lesser offense and the offense charged) may, in appropriate circumstances, render a failure to submit the requested lesser offense harmless .” Masterson v. State , 155 S.W.3d 167, 171 (Tex. Crim. App. 2005)

. He further concedes that the mental state required for manslaughter

— recklessness

— was the same mental state required for the felony

- murder charge rejected by the jury in favor of its guilty verdict on the

c apital

- murder charge. Still , Tennell suggests that “differences remain” between the proposed lesser

- included offense of felony murder based on reckless injury to a child and manslaughter because the jury would have had to find that he committed an act clea rly dangerous to human life to convict him of felony murder , see T EX .16

P ENAL C ODE § 19.0 2(b)(3), but that is not an element of manslaughter , see id

. § 19.0 4. Tennell’s argument does not explain why he was entitled to a manslaughter instruction in addition to the lesser

- included felony

- murder instruction that was given

. He attempts to analogize his case to Roy v. State , 509 S.W.3d 315 (Tex. Crim. App. 2017) , a murder case in which the Court of Criminal Appeals held that

a lesser

- included manslaughter instruc tion was required

. Roy is distinguishable because some evidence in that case suggested that the appellant deliberately caused a fatal car crash, and he was charged with a different theory of murder , T EX . P ENAL C ODE § 19.0 2(b)(2), which required proof that he intended to cause serious bodily injury. Roy , 509 S.W.3d at 317

. The Court held that other evidence would have allowed a jury to find that the appellant did not intend to cause harm yet did disregard the risk of causing death by driving while intoxicate d, thus requiring the manslaughter instruction. Id

. at 3 19 . Unlike this case, Roy did not feature the circumstance of a capital

- murder charge premised on intentional conduct paired with an instruction on a lesser

- included felony

- murder offense that was pre mised on reckless conduct. Tennell fails to suggest what evidence would have allow ed a rational jury to convict him of only manslaughter while acquitting him of the felony

- murder charge premised on reckless injury to a child

. Cf

. Sweed , 351 S.W.3d at 68. “[I] t is17

not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather there must be some evidence directly germane to the lesser

- included offense for the finder of fact to consider before an instruction on a lesse r - included offense is warranted

. ” Bullock v. State , 509 S.W.3d 921, 925 (Tex. Crim. App. 2016)

. While he suggests that a jury could have chosen to convict him of manslaughter because that charge would not have required the jury to find that he committed an act clearly dangerous to human life, he fails to suggest what evidence would have supported a rational jury in drawing that distinction. See Hudson v. State , 449 S.W.3d 495, 498 (Tex. Crim. App. 2014) (holding a ppellant was not entitled to a lesser

- includ ed instruction on manslaughter when the proof upon which she relied was also sufficient to prove another, greater lesser

- included offense of capital murder ); Flores v. State , 245 S.W.3d 432, 439 (Tex. Crim. App. 2008) (“ A defendant does not satisfy the sec ond prong ” of the standard for determining if a lesser

- included instruction is required “ if there is evidence that he committed an offense that is a lesser

- included of the charged offense but greater than the requested lesser

- included offense. ”). Nor does he explain how he could have been harmed by the failure to give the manslaughter instruction when the jury convicted him of capital murder despite having the option of convicting him of felony murder based on reckless injury to a child. See Masterson , 155 S.W.3d at18

171

. Accordingly, we overrule Tennell’s challenge to the jury instructions

. See T EX . R. A PP . P. 38.1(i). II I. Denial of motion for new trial Tennell’s remaining issues relate to the denial of his motion for new trial. On the morning after he was sentenced, the prosecution informed him that Harris stated that when she left Hailey with him, he was wearing the same jeans that had been admitted into evidence at trial. Tennell filed a motion for new trial asserting that this information was illegally w ithheld. The motion also argued that this information just ified a new trial because it constituted newly discovered evidence, and that deadlines applicable to a motion for new trial were unconstitutional as applied to him. Prior to trial, Harris had state d that Tennell was wearing jeans on the morning of the day when Hailey died. The prosecution provided that information to defense counsel , in discovery responses , almost two years before trial. The State also produced documents indicating that jeans had be en collected from the apartment and submitted for toxicology testing. Shortly before trial, the jeans were tested for the presence of PCP , and the positive results were provided to defense counsel. At a hearing on the motion for new trial, t he lead prosecu tor testified that he had not suspected that the jeans in evidence were the same jeans Harris had referenced in her pretrial statements indicating that Tennell had been wearing jeans19

on the day Hailey died

. The prosecution had not shown the jeans or pictur es of the jeans to Harris prior to trial, and only after sentencing did they learn from Harris that she had seen Tennell that day in those particular jeans. The State offered into evidence a written report , titled “Supplement : 00 33 , ” which had been prepar ed by Detective Davis and which included a brief summary of an interview with Harris on the day after Hailey’s death. According to the summary, Harris told the detectives that when she left the apartment to take Riley to the doctor’s appointment, Tennell w as sitting on the living room sofa, wearing “a T

- shirt, jeans and slides.” Defense counsel agreed that Supplement 33 was provided in the State’s first batch of discovery responses , almost two years before trial. Defense counsel also agreed that Supplement 33 would have been one of the first things reviewed in preparation for the case. The State also offered into evidence two recordings of Detective Davis interviewing Tennell. The first recording was an interview conducted on the day of Hailey’s death, in w hich Tennell claimed that a bottle of PCP burst in his pocket the night before, spilling PCP onto his skin. During the second interview, conducted approximately one week later, Detective Da vis confronted Tennell with inc onsistencies between his and Harris’ s account s of certain details about the day of Hailey’s death

. Detective Davis explained that Harris had said she remembered that Tennell was sitting on the couch when she left, and he was wearing a white20

t
- shirt , jean s, and “red slides.” Defense counsel c onceded that recordings of both interviews of Tennell were included in the State’s first batch of discovery responses . Counsel further stated that both audio files had been reviewed “multiple times.” Nevertheless, two different lawyers working on Tennell’s defense each testified that they had missed both references to “jeans” in the State’s discovery responses . One of the defense lawyers testified that she had asked Tennell if he had been wearing the jeans, but he told her he could not remember. That lawye r never attempted to speak to Harris before trial , n or did she send an investigator to speak with her. The attorney testified that she was worried about damaging Tennell’s

case if someone from the defense team contacted Harris before trial and said somethi ng to upset her. Noting that the defense asked Harris at trial if she had smelled PCP on Tennell’s “pants” the night before Hailey died , t he State asked defense counsel why she had not also asked Harris about her statement to Detective Davis that Tennell had been wearing jeans. Counsel stated that at that time she had not remembered the word “jeans” from the report. In an affidavit attached to Tennell’s motion for new trial, defense counsel stated that she chose not to ask Harris whether she had seen Tenne ll wearing the PCP

- stained jeans because she did not know how Harris would answer the question. Counsel believed that if Harris21

denied that she had seen Tennell in the jeans, it would destroy the defensive theory. Both defense lawyers conceded that Det ecti ve Davis would have been available as a defense witness, but they made a strategic decision not to call him to the stand. In support of the argument that the State knew the PCP

- stained jeans were the same ones Harris had seen him wearing on the day of the murder, Tennell offered into evidence a recording and transcript of a call between Harris and a defense investigator. During the call, which took place several weeks after trial, Harris told the investigator that she had explained to the prosecution prior to trial that Tennell’s story about PCP spilling in his pocket the night before Hailey’s death could not be true because he was wearing shorts that night, and he did not put on “those jeans ” until the next morning

. Harris testified at the hearing on the motion for new trial. S he clarified that she had told prosecutors and detectives in the case that Tennell was wearing blue jeans when she last left him with Hailey, but the prosecution had never shown her the jeans or pictures of the jeans that had been co llected from the apartment. The first time she saw the jeans again after Hailey’s death was when defense counsel held them up during closing argument. Harris then realized that they were the jeans she had seen Tennell wearing that day , and she informed the prosecutors the following day.22

Tennell also offered into evidence notes from a meeting Harris had with three prosecutors approximately two weeks before trial. N otes from each of the three prosecutors indicated that Harris had stated Tennell wore “blue” o r “dark blue ” jeans

. The se notes were not provided to the defense until after trial. The motion for new trial was denied. We review a trial court’s ruling on a motion for new trial under an abuse

- of

- discretion standard. Webb v. State , 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court’s ruling, and we must uphold the trial court’s ruling if it was within the z one of reasonable disagreement. Id. “[ A ] trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court ’ s ruling. ” Id. A. Brady violation Tennell contends that the trial court erred by denying his motion for new trial because the State withheld e xculpatory evidence

. He asserts that the prosecution withheld the information that when Harris last left the ir apartment before Hailey’s de ath, she saw Tennell wearing jeans , and that the jeans were the

same ones collected from the apartment and that later tested positive for PCP. He contends that this information would have supported his theory of transdermal absorpti on of PCP, and therefore would have made the lesser

- included offense of felony murder based on reckless injury to a child a more viable option for the jury.23

“A prosecutor has the affirmative duty to turn over material, favorable evidence to the defense.” Little v. State , 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). The suppression of evidence favorable to a defendant violates his due

- process rights if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 1196

– 97 (1963). To establish a Brady violation, a defendant must show: (1) the State failed to discl ose evidence ; (2) the withheld evidence is favorabl e to the defendant; and (3) the evidence is material, that is, there is a reasonable probability that had the evidenc e been disclosed, the outcome in the trial court would have been different. Pena v. Stat e , 353 S.W.3d 797, 809 (Tex. Crim. App. 2011); Hampton v. State , 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). “Favorable evidence is any evidence that, if disclosed and used effectively, may make a difference between conviction and acquittal and includes bot h exculpatory and impeachment evidence.” Harm v. State , 183 S.W.3d 403, 408 (Tex. Crim. App. 2006)

. Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault, and impeachment evidence is that which disputes, disparages, deni es, or contradicts other evidence. Id. The s tate’s obligation to reveal Brady mater ial attaches when the information comes into the state’s possession. Id. at 407. Brady does not , however, require the prosecution to disclose exculpatory or p otentially ex culpatory evidence24

that it does not have in its possession and that is not known to exist. Id. Nor is the prosecution required “to seek out exculpatory evidence independently on appellant’s behalf, or furnish appellant with exculpatory or mitigating eviden ce that is fully accessible to appellant from other sources.” Id. It is undisputed that the State provided discovery responses to Tennell’s defense counsel almost two years before trial . This information included Detective Davis’s report indicating that H arris told him that Tennell was wearing “jeans” when she last left him alone with Hailey . It included a recording of Tennell’s first interview with police in which he stated that he spilled PCP on his pants the night before Hailey’s death . And it included a recording of a second interview of Tennell in which Detective Davis told him that Harris claimed he was wearing jeans when she left him with Hailey. It is also undisputed t he defense was aware prior to trial that jeans , ultimately admitted into evidence at trial , had been collected from the apartment and that a swatch from the jeans tested positive for PCP. Tennell disparages the discovery provided to his defense team as a “discovery dump.” But he presents no argument or evidence that the State delibera tely obscured the information that Harris stated he was wearing jeans before she left the apartment. The record shows that the State disclosed to Tennell’s lawyers the very information that he now complains was illegally withheld. To the extent Tennell com plains that the State failed to disclose that25

Harris saw him wearing the same jeans that tested positive for PCP, he has failed to show that the State had that particular information before trial. Without a failure to disclose evidence, there is no Brady violation. Harm , 183 S.W.3d at 406. By providing counsel discovery materials that contained references to Harris’s statement and the results of the PCP testing on the jeans , the State fulfilled any obligation it had with respect to that evidence. Cf. Gill v. State , No. 01

- 09

- 01012

- CR, 2010 WL 4910210, at *4 (Tex. App.

— Houston [1st Dist.] Dec. 2, 2010, no pet.) (mem. op., not designated for publication) (citing Harm , 183 S.W.3d at 407) ( I f the State opens its files for examination by defense counsel, it gene rally fulfills its obligation to disclose exculpatory evidence , unless the evidence is not contained in the file

. ). Because Tennell has failed to establish that the State withheld information in its possession or that it knew to exist, he has failed to sa tisfy the first prong required to show that a Brady violation occurred. Further, the State did not have a duty to investigate or develop Tennell’s defense for him

. W e therefore conclude that the trial court did not abuse its discretion by failing to grant a new trial based on the alleged Brady violation. B . Newly discovered evidence Tennell separately contends that the trial court erred by denying his motion for new trial based on his discovery of material evidence. As with the Brady claim,26

this issue is p remised on the theory that he did not learn until after trial that Harris

saw him on the day of Hailey’s death wearing the PCP

- stained jeans

. “A new trial shall be granted an accused where material evidence favorable to the accused has been discovered sin ce trial.” T EX . C ODE C RIM . P ROC . art. 40.001. To obtain relief under this rule , 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 defend ant’ s failure to discover or obtain the new evidence was not due to his 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 b ring about a different result in a new trial. State v. Arizmendi , 519 S.W.3d 143, 149 (Tex. Crim. App. 2017)

. Defense counsel claimed they were unaware at the time of trial that Harris saw Tennell wearing the PCP

- stained jeans the day of Hailey’s death. Bu t even to the extent they were subjectively unaware of this information, to be entitled to a new trial based on newly discovered evidence, Tennell had to show that the failure to discover this evidence was not due to his own lack of diligence. Counsel wa s provided with discovery that included two references to the fact that Harris saw Tennell wearing “jeans” the morning of the murder. T he se references were contained in the report of the lead detective and in an interview of27

Tennell himself

. The informatio n was provided to defense counsel almost two years before trial. Even to the extent Tennell ’s legal team failed to find or perceive the significance of the information disclosed in discovery about Harris’s statement , Tennell himself was aware of the facts that he was with Harris on the night before Hailey’s death and on the following morning

. He had personal knowledge of the facts at issue, including the circumstance that Harris was a witness who possibly could have confirmed the information. Nevertheless, his legal team did not attempt to speak with Harris before trial. Tennell’s defense counsel testified at the hearing on motion for new trial that this was a strategic decision. The trial court reasonably could have determined that through reasonable dili gence , Tennell could have obtained the information that Harri s saw him wearing the PCP

- stained jeans on the day of Hailey’s death

. Accordingly, the court did not abuse its discretion by denying a new trial based on the claim of newly discovered evidence

. I V . Constitutionality of new - trial motion deadlines Tennell argues that the deadline for filing a motion for new trial is unconstitutional as applied to him because it thwart ed his ability to de fend his constitutional rights.28

A motion for new trial is a pre requisite to presenting a point of error or issue on appeal when it is necessary to adduce facts not in the record. T EX . R. A PP . P. 21.2. Such a motion must be filed within 30 days after the date the trial court imposes or suspends sentence in open court. T EX . R. A PP . P. 21.4 (a)

. Tennell argues that, under his circumstances, the deadline for filing a motion for new trial d id not allow for “adequate investigation and accompanying support ” for

“ extra
- record matters.” He broadly argues that because he is indig ent and has been jailed since his sentencing, and because his trial and appellate counsel were court appointed, he is unable to make a substantial claim that he received ineffective assistance of counsel. While Tennell’s brief outlines potential arguments that he received ineffective assistance of counsel, he provides no argument about how the existing procedures were inadequate to allow his counsel to raise those issues on the schedule established by the rules of procedure, so as to be unconstitutional as applied to him in this case. See London v. State , 526 S.W.3d 596 , 599

– 600 (Tex. App.

— Houston [1st Dist.] 2017, pet. ref’d). The brief recites the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and Sections 10 and 19 of the Texas Bill of Rights as constitutional provisions that are violated by a “systemic failure” of rules that are not sp ecifically identified, but the brief makes no legal argument about how particular procedural rules violate particular constitutional29

protections. See T EX . R. A PP . P. 38.1(i) (appellant’s brief must contain “a clear and concise argument for the contentions made, with appropriate citations to authorities”). Accordingly , we conclude that Tennell has waived his constitutional challenge to the procedures governi ng motions for ne w trials by failing to support the challenge with appropriate legal arguments. V. Constitutionality of Penal Code Chapter 19 Finally, Tennell argues that the trial court erred by denying his motion to declare Chapter 19 of the Penal Code unconstitutional and failing to set aside the indictment on that basis. Chapter 19 codifies the substantive law applicable to criminal homicide in Texas. On appeal Tennell argues that Chapter 19 violates his right to equal protection under the federal and state constitutions. In the trial court Tennell made an oral motion to the trial court, asking it to declare Penal Code Section 12.31 and Code of Criminal Procedure Article 37.071, Section 1 unconstitutional , based on the mandatory sentence of life without parole applicable to capital murder convictions. However, the record does not reflect that Tennell ever argued that Chapter 19 i s unconstitutional. Because Tennell’s argument on appeal differs from his argument in the trial court, he has not preserved th is issue for review. See T EX . R. A PP . P. 33.1(a); Wilson v. State , 71 S.W.3d 3 46, 349 (Tex. Crim. App. 2002).30 Conclusion We affirm the judgment of the trial court.

Michael Massengale Justice Panel consists of Justices Keyes, Bland, and M assengale. Do not publish. T EX . R. A PP . P. 47.2(b).