NO. 07-05-0026-CR 07-05-0027-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B SEPTEMBER 29, 2006

______________________________ RANDY JAMES THOMASON, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 242 ND DISTRIC T COURT O F HALE COUN TY; NO. B15431-0403, B 15434-0403; HONO RABLE ED SELF, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION
In thes e com pan ion a ppe als Ra ndy Ja mes T hom ason chal lenge s his t wo convicti ons for the felony offense of inde cency w ith a child. The convictions resulted from his prosecution under fou r separate indictments f or s imila r off enses, each invo lving a differentvictim. He presents the same two issues in each appeal a llegi ng error arising from theState’ s failu re to t imely discl ose exculpatory evid ence. We affirm.1 Brady v. M aryland , 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct . 1194 (1963). 2 Appellant

and his wife began living with the wife’s relatives in the fall of 2003. Also living in the house were minor sisters, AR and TR. On M arch 3, 2004 the father of AR and TR informed Hale Center police officer Joe Vest his dau ghters and two other girls, DS and MG, alleged appel lanthad eng aged i n sex ual co nduct w ith th em. Vest briefly intervi ewed the girls at a re lative’s home then took their written and oral statem ents at the police station. An audiotape was made of three o f the four oral state ments. Three of the girls also were interviewed later by another inter

viewer and videotapes

were made of thes e later interviews. Separate i ndictm ents charged appellant w ith the offenses of agg ravated sex ual assault of AR and i ndecency w ith a child against TR, D S and MG.
In r esponse to defe nse motions for discovery and disclosure of exculpatory information filed in April 2004, the trial court issued its stan dard d iscovery order, which included the re quir

ement th at the p rosec ution p roduceexcu lpator y ma teri al. The State provided an initial response to the d iscover y motion the same month. At a Ju ne 2004 pretrial hearing defense counsel stated h e had received copies of videotaped s tatements of two complainants. Defense cou nsel also informed the trial judge one or two of the vic tims made similar

allegatio ns against o ther people and he sought informati on on those
cases “to the limited extent that that would come und er our Brady 1 motion[.]” In July, the defense obtained a continuance to provide time to ob tain a replacement copy ofthe audio recording and to revi ew reports of the nurse examiner.2 Our disposi tion of appellant’s points does not require us to address the merits of this argument. We note, howev er, that the trial court’s standard discoveryorder statesthat itappli es to i nforma tion and material s in the posses sion of the prosec utor “or any of the agencies of the State.” Se e Harm v . State , 183 S.W.3d 403, 406 (Tex.Cri m.App. 2006) (duty under Brady

requires disclosur

e of favorable ev idence know n only to th e police). 3 According to defense counsel, he did not recei ve copies of the wri tten statements of AR, TR and DS, or the audio recording of AR, T R, and MG until the afternoo n of January 10, 2005, the day before tr ial. During v oir dire oneof the venire members reveal ed DS had accused her son of

a similar crime. Appellant asse rted objectio ns to the State’s failure to disclose that

particular

accusation and untimely disclosur

e of the writ

ten statements and audio recordin g. He sought dismissal of the charges r elated to AR and DS. Based on t he prosecutor’s statement that the p r ior allegatio n by DS r esulted in a g uilty pl ea, the trial judge fou nd it was no t excu lpat ory. With regard to the other informatio n, the prosecution’s response was that

the State maintai ned an open file poli cy and had turned over “every thing thatwe have ever h ad” t o the def ense . He al so re pres ente d the pros ecut ion d id no t have the tape recordi ng until i t was provided by the police department the same da y it was giv en to the defense. 2 Alternatively, the pr osecution arg ued the audio tape di d not contain any additional or

different information, b ut it had no objection to t he court rul ing the recording inadmissible due to untime ly disclosure. The court denied the mot ions to dismiss. Appellant

was found guilty

of indecency w ith a child against AR and TR. He was acquitted on the charges

related to D S and MG.3 Beca use t he br iefsin both appeals pre sent identical points of error , we refer to

each point in the singular. 4 Appellant’s first point3 assigns e rror to thetrial c ourt’s failur e to grant a “postponement or continuance” when “‘ Brady ’ evidence ” was pr

ovided immediately

prior to and during trial. His second point assig ns error tothe failure to g rant a mistri al based
on violati on of Brady . In Brady the U.S. Supre me Court recog nized a constituti onal right to have the government disclose evidence in its possessio n which is material and excul pato ry. Brady , 373 U.S. at 87. S ee also Harm , 183 S.W .3d at 406 (stating rule). Impeachment

evidence also falls within the Brady rule. United States v

. Bagley, 473 U.S. 667, 676, 105 S.Ct. 337 5, 87 L .Ed.2d 481 (1985); Harm , 183 S. W.3d at 408. To demonstrate revers ibl e er ror for v iol atio n of Brady

rights, a defendant m ust show (1) the State failed to discloseevidence, r egardless of the prosecutor' s good or bad faith; (2) the withheld evidence i s favorable to the defendan t; and (3) the withheld evidence is material, thatis, there is a reasonabl e probability that had the ev idence been disc losed, the outcom e of the trial w

ould have been d ifferent. Harm , 183 S.W.3d at 406. When exculpato r y evide nce i s not conc eale d, bu t disc losu re is u ntim ely, the defendant bears theburden to show the delay r

esulted in pr

ejudice. United

States v. Mc

Kinney , 758 F.2d 1036, 1050 (5th Cir. 1985); Wilson v. State , 7 S.W.3d 136 , 146 (Tex.C rim.App. 1999). Prejudice i s not shown when the in formation is dis closed to the defendant in time for

him t o ma ke ef fec tive
use of it at trial

. McKinney , 758 F.2d at 1050; see Little v. State , 991 S.W.2d 864, 866 (Tex.Crim .App. 1 999) (cit ing McKinney ).4 Several Texas courts have held the failure to seek a continuance on untim ely

disclosure of exculpatory evidence waives a ny Brady violati on. See, e.g., Taylor v. State , 93 S.W.3d 487, 502 (Tex.App.--Texarkana 2002, pet. r ef’d). These opinions rely at least in part on Yates v. State , 941 S.W.2d 357, 364 (Tex.App.--Waco 1997, pet. ref’d). A majority of the Waco Court of

Appe als rec entl y r

ejec ted t he r atio naleof Yates

in Moore v. State , 143 S.W.3d 305, 316 (Tex.App.– Waco 20 04, pet ref’d) ( op. on rehearing ). Our disposition of this appeal does no t require us to address the State’s argu ment that appellant

wa ive d any Brady

violation s for lat e-disclo sed evide nce by not seeking a continuance. 5 Appellate counsel candi dly acknow ledged at ora l argument tha t trial counsel’s complaints at trial did not expres sly inc lude a motion for a continuance. We note also that appellant’s brief contai ns no citation to the record where trial counsel sought a mistrial. See Tex. R. App. P. 38.1(f), (h). W hile we have no duty to search the record for support for an appellant’sargument, se e To rres v. Sta te , 979 S.W.2d 668, 671 (Tex.App.-- San Antonio 1998, no pet.), our examination of the portions containing trial counsel’s motions for dismissal reveals he did not req uest a continuanc e, either before t rial or i n connection with his motion to di smiss, or a mistrial. With exceptions not rel evant here, aparty may not complain on appeal of the tri al court’s failure to act on a request or objection not madeto thatcourt. See Tex. R. App. P. 33.1(a). See also Dixon v. Stat e , 2 S.W.3d 263, 273 (Tex.Cri m.App. 1998) (op. on r ehearing) (trial obj ection whi ch does not compo rt with ap pellate compl aint is not pr eserved for r

eview) . This is a s ufficient basis on w hich to overrule appellant’s points. 4 Moreover, appellant’s argument fa ils to show the evidence disclosed on the eve of trial was favorable or material, or that its late disclosu re resulted in p rejudice. The evidence he identifies as exculp atory was the crimi nal history of the State’s w itnesses, the prior accusation by

DS, and possi bly the compl ai nants’ w ritten statements. Appe llant’s6

arg um entdoes not identi fy any state’s wit ness who had a criminal r ecord whi ch was not disclosed. Nor does hi s argument ex plain how the report of DS of another offense committed against her

would be ex

culpatory

where that

report res ulted in a g uilty pl ea. Cf. Lopez v. S tate , 18 S.W.3d 220 (Tex.Crim.App. 200 0) (address ing admissi bility of complainant’s previous false allegations of abu se by third person); Igo v. State , No. 07-02- 0484-CR (Tex.App .–Ama rillo Novem ber 30, 2004, p et. grant ed) (assu ming s t atement of mother to police that

daughter made fals e allegati ons in the past wassubject to disclosure under Brady

). Finall y, appellant ’s argument ignores thefact he was acquitted of the charge related to DS. Appellant’ s argu ment that the w ritten statements of the complainants were Brady material is limited to the asserti on they “co ntained substanti al i nconsistenci es” and a citation to the exhibits volume of the reporter’s record. T he argument falls s hort of the requirement

of Rule of Appellate Procedu re 38.1(h) for “ a clear and con cise argu ment for the contentions made,”with appr opriate citat ions to the record. In our rev iew of the record
we note that during his argument to thetrial cour t concerning the asserted Brady violations, trial coun sel e mph asize d tha t AR’s video -tap ed st atem ent a llege d two incidents w hile her written statement

and audio-taped state ment recounted on ly one incident. As the State’s brief points out, however, appellant’s counsel play ed AR’s audio-taped statement in fro nt
o f the jury and cross-e xamined her ex tensively about inconsis tencies in her sta tements

. Itthus appe ars a ppe llan t wa s able to make effective use of the materials del ivered to counsel shortlybefore trial. That conclusion is buttress ed by appell ant’s conv iction of the lesser included offense of indecen cy wi th a child agai nst AR rather than the charg ed7

offense of aggravated sexual assault. We find that prejudice from an untimely disclosure of the statements has not been shown. See Wilson , 7 S.W.3d at 146. Appellant

has failed to show

hi s due process rights were violated by the State’s failure to discloseinformation req uired by Brady

. For that r eason, as we ll as for the r eason the record reflec

ts no motion for

a continuance or

mistrial, we overrule appellant ’s points of error in each appeal and affirm the trial court’s judgmen ts.

James T. Campbell Justice

Do not publish

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