## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

__________________

_________ No. 02

- 20

- 00162

- CR

__________

_________________

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR19

- 0437

Before Bassel, Womack, and Wallach, JJ. Opinion by Justice Womack 

### T RISTON 

### D AVID 

### S OPKO 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 OPINION
I. I NTRODUCTION After p leading true to vio lating the terms of his probation, Appellant Triston
D a vid Sopko was sente nce d to seven years ’ confinement by the trial court. In a sol e issue on appeal, Sopko complain s that the tri al court abused its d iscretion by denying
his pretri al motion for disco very in depriva tion of his rights under Article 39.14 of the
Texas Code of Criminal Proce dure , arguing that the Stat e improperly withheld two pieces of material evidence before his revocation hearing

. Tex. Code Crim . Proc.
A nn. art. 39.14

. W e a ffirm the trial court ’ s judgm ent
. II. B ACKGROUND
In 201 9 , Sopko was ind ic ted on felony counts of family

- viol ence assault an d
retaliation

. He was appointed trial counsel , and t he trial court entere d a standi ng discovery order p u rsuant to “ Texas discovery law in criminal cases and, spec ifically,
Article 39.14 of the Texas Code of Criminal Procedure

. ” The order required the Sta te to produce the item s enumerated in A r ticle 39.14 (a ) and exculpatory Bra dy evidenc e . Tex. Code Crim. Proc. A nn. art. 39.14 ( a ) ; s ee Brady v. Maryland

, 373 U.S. 83, 83 S. Ct. 1194 (1963)

. Sopko entered into a plea agreement and was placed on probation f or ten years
. It is u ndi spu ted that the State pr oduc ed to Sopk o al l discovery mater ials required by
A rticle 39.14 before he p lead ed gui lty ; those materials in clude d two particular pieces
of evidence: (1) a video of the assault in question , and (2) a wri tt en statement to police3

from Justin Brown, the vic ti m of t he a ss ault

. Sopko ’ s attorney acknowledged t his production by signing a n Arti cle 39.14(j) compliance form

. Tex. Code Crim. Proc.
Ann. art. 39.14 (j). Five months later, t he State moved to revoke So pko ’ s p r obat ion. Sopk o was appointed a differe nt attorney to rep resent him in the revocation proc eeding

. His
newl y appointed attorney filed a motion for discovery and a motion for continuance , which sought more t

ime to prepare and in terv

iew recent ly disc overed witness es . The motion for discovery sought an order for the State to disclose materials from a list of
dozens of evidentiary categories on due pro cess grounds , but it d id not explicitly
invok e Article 39.14. 1

1 T he Stat e a r gu es th at Sopko fai led to pres erve h is issu e be cause he complains on appeal of an alleged Article 39.14 violation , but his motion to the t rial court did not specifically invok e Article 39.14

. See Tex. R. App. P. 33.1(a)(1) (A) (requiring , for purposes of p re s erving appe llate re vi e w, a complaint ma de to the trial court by motion to have “ stated the grounds for the ruling that the comp laining party sought from the trial court with s ufficien t specificity t o make the trial court aware of th e complaint ” ) ; see a l

so Medina v. State , No . 1 0

- 19

- 00007

- CR, 2020 WL 469 0 150 , at *2 (Tex. App.

—

Waco Aug. 12, 2020, no pet.) ( mem. op., no t designate d for publication) ( holding appellant f

ailed to preserve Br

a dy issue when motion for new trial complain ed only of Article 39.14 v iol ation ) ; Gl over v . S t ate , 49 6 S.W.3d 812, 815 (Tex

. App.

— Houston [14th Dist. ] 2016, pet. ref ’ d) ( “ B y its express language, [Article 39.14] requires a defendant to i nvoke his right to d i scovery by request to avail himself of the [Article ’ s] benefits

. ” )

. S o pko ’ s motion does no t s peci fically invoke Article 39 .14, but it does designate fo r disclosure certain evidentia ry cate gories (e.g. , “ [ l ] aw enforcement reports, ”

“ wri tten or recorded stat ements made by the [d ]efendant, ” and “ [a]ny books , p apers, documen t s, ph oto graphs [,] or tan g ible objects . . . obtained from the [d]efendant ” ) tha t are enu merated in Article 39.14. B ecause we are to liber ally construe the R ul es of Appellate P roce dure so as not to effe ct uat e a waiver whenever re aso nably po ssible , we4

With out a plea agreement, Sopko plead ed t ru e to violating h is probation terms and requested th at the trial court assess his p unishment

. At the outset of the
revocation hearing, Sopko ’ s at torney reurged his motio n fo r discovery :

[ D EFENSE

] : For the re cord, on my motion fo r disco ve ry

- - I thi nk we ’ ve discussed t hi s before. 2
T HE COURT : We did, and the Court is going to deny tha t request. [ D EFENSE

] : T hank , [sic] Your Honor. And, at that point, I will withdraw my mo tion for continuance.
Br own , the assault vi ctim, testified as a miti gation witness for Sopko . H e stated
that he and S opko were , and continued to be, friends and characte rized the assault as

“ just a scuffle

. ” On direct exa minati on , Sopko ’ s attorney as ke d Brown ab out the
vi deo of the assault :

[ D EFENSE

] : In fact, there was a vi deo taken of [th e ass a ult],
r ight? [ BROWN ] : Yes. [ D EFENSE

] : Okay. An d have you see n the video?

will addres s Sopko ’ s issue

. Tex

. R . App. P. 38 .1 (f) , 38. 9 ; see Clark v. State , 365 S.W.3d 333, 339 (T ex. Crim. App. 2008) (instructing that use of hyper

- technical phr ases are not required to preserve review , on ly that appellant have “ let t he tr ial judge know
w hat he wants, why he thinks he is entitled to it, an d to do so clearly enough for the judge to understand him at a time when the judge is in the proper position t o do something about it. ” ) (quoting Pena v . State , 2 85 S.W.3d 459, 464 (T ex. C rim. App. 2009) )

.

2 Th e re cord before us co n t ains no previous discu ssio n betwe en the trial court and Sopko ’ s attorney on this matter

.5 [ B ROWN ] : I have, several times. It went viral over F acebook. [ D EFENSE

] : But, ac tually, in that vi d eo, you and the Defe ndant just are

- - [ B ROWN ] : Gon e. [ D EFENSE

] :
- - go n e for a s econ d, right? [ B ROWN ] : Yes. [ D EFENSE

] : O kay. [ B ROWN ] : It was over that quick with us . . . . Sopko ’ s attor ney also twice asked B rown wheth er he had pro vided a written

state ment to the police at the time of the assaul t , but Brown stated th at he did not
remembe r gi ving a statement

. On cross

- examinat ion, o ver no objection from the
defense , the Stat e refreshed Brown ’ s r ecollection w ith his writt en and signed

statement from the nigh t of the assaul t
. At th e con cl usion of the hearing , t he trial

court sent enced Sopko to seven years ’ confinement.
III. D ISCUSSION Sopko contends t hat the trial cou rt ’ s deni al of his motion for discovery deprived hi m of the di scovery righ ts granted under Article 39.1 4

. He argues that , in ligh t of the Court of Crim inal Appeals ’ s recent ho lding in Watkins , the video of the
assault and Brown ’ s writ ten statement w ere mat erial and should have been prod uced by the State again prior to the revocation hearing. W atkins v. State , 61 9 S.W.3d 265 , 290 (T ex. Crim. App . 2021)

.6

Throughout his brief, Sopko conflates the st andards governing Art icle 39.14 violations and due process violations under Brady . Tex. Code Crim. Proc. Ann. art.
3 9 .14; Brady , 373 U.S. at 87, 83 S. Ct. 1196

- 97 . He states a s his sol e issue on appeal
that h is rights under Article 39.14 were violated an d substantively argue s that the allegedly withheld evidence was material in light of Watkins , 619 S.W.3d at 288 . He then erroneously posits th at we sho uld determine error here using the t raditional,
three

- pron ged Brady test, citing in support Pena v. Stat e , 353 S.W.3d 797 (Te x. Crim. Ap p. 2011), a pre

- Michael Morton Act case that reviewed only an issue involving a Brady violation.
The court in Watkins , however, was exclusively concerned with the definition
of “material” as it appears in Article 39.14 and drew a bright line b etween how courts should analyze Article 39.14 violations and Brady violations. Watkins , 619 S.W.3d at 277, 288 (stating that chang es to Article 39.14 through the Mic hael Morton Act impose a “much broader” duty of disclosure on the St ate than does Brady , making it

“ inconsistent with [the Court of Criminal Appeals’s] precedent relying on the due process concept of ‘materialit y’ to dete rmine whether the refusal to order disclosure
amounted to harmful error”). As such, to the extent that Sopko’s briefing can be construe d to also attempt to

assert a Brady violation, we conclude that this issue is inadequately briefed and7

multifar ious. 3 See Tex. R. App. P. 38.1(f), ( h ) (req uiring that appellant’ s brief must “state concisely all issues or po ints presented for re view” and “ contain a succinct, clear, and accurate statement of the arguments made in the body of the brief .”);
Aldrich v. State , 928 S.W.2d 558, 559 n.1 (Tex. Crim. A pp. 1996) (instructing that an issue may be properly denied as multi farious if it contain s more than one legal theory);
see also Williams v. State , No. 02

- 19

- 00484

- CR, 2020 WL 6066198, at *2 (Tex. App.

— Fort Wort h Oct. 15, 2020, no pet.) (mem. op., not desi gnated for publication ) (choosing to review claim conflating statuto ry and due process st andards as having raised only a statutory issue where appellant substantively briefed only the statutory issue).
We will , therefore, address Sopko’s sole issue as he substantively briefed it

— whether the trial court abused its discret ion in violation of S opko’s righ ts under Article 39.14 in light of Watkins

. See Williams , 2020 WL 6066198, at *2. As suming , without decid ing , tha t the trial court er r ed, we hold that any such error was ha rmle ss . A. Standard of Review and Applicable La w A trial court ’ s ruli ng on pretr ial discove ry is r eviewed f or an abuse of
discretion. Branum v. State , 535 S.W.3d 2 17 , 224 (Tex. App.

— Fort W or th 2017, no

3 E ven if Sopko had properly raised a purel y Brad y claim, it wou ld necessarily fail b ecause it is u ndispute d that he was a ware of both t h e video and the written stat e m ent before the revoca t

ion hearing. Pena , 353 S.W.3d at 810 ( holding that the State does not have a duty to disc lose Brady materi al “ if the defendant was actually aw are of the exculpa to ry evidence or co uld h ave access ed it fr o m other sourc es ” )

.8

pet .). If a trial court abuses it s discretion in violat i on of Article 39.14, appellate courts

must s ubject the err o r to a harm analy sis. Watkins , 619 S.W.3d at 269 ; see Williamson v.
State , No. 04

- 20

- 0 0268

- CR , 2021 WL 4976326 , at *3 ( Tex. App

. — San Antonio
Oct. 27, 2021, no pet. h .) (mem

. op. , not designated f or publication) (

perf orming harm analysis following h olding in Wa tkins )

. “[W]hen only a st atutory violatio n is
claime d, the error must be treated as non [] constitutional for the pur pose of conducting a harm analysis . . . . ” Gray v. State , 159 S.W.3d 95 , 98 (Tex. Crim. App.
2 005) ; s ee Williamson , 2021 WL 4976326 , at *3

– 4 ( app lying 44.2(b) h arm analysis to
A r tic le 39.14 v

i olation ) ; Branum , 535 S.W.3d at 225

– 26 (same) ; Z iegle r v. State , No. 04

- 15

- 00559

- CR, 2016 WL 5795208, at *2 (Tex. A pp.

— San Antonio Oct. 5 , 2016, no pet.) ( mem . op. , not designate d for publication) (same). Rule 44.2(b ) requi res reviewing courts to disregar d any nonconstitutional error that does not affect appellant ’ s substantial rights. Tex. R. App. P. 44. 2(b )

. To de t ermine w hether an erro r impl icated a substa ntial ri ght in a non jury proceeding , courts consider “whether a pa rty had a right to th at which th e error denied. ” Johnson v. S tate , 72 S.W.3d 346, 348

– 49 (Tex. Crim. App. 2002)

. If the error implicated a su bsta ntial right, courts mu st then consider the entire record to
determine the pote ntial impact of the error on th e fact finder ’ s decis i on. Coble v. State , 330 S.W. 3d 253, 281 (Tex. Crim. App. 2010); s ee Johnson , 72 S.W.3d at 348

– 49 ( holding
in a non jury proc ee di ng that no harm flow ed from trial court ’s e rror without deciding
if the central issu e
—

whether th e requirement that a waiver of tri al by jury be9

written

— impl icated a subst antial right) ; Hastings v. State , 20 S.W.3d 786, 79 1 ( Tex

. App.

— Amarillo 2000 , pet
. re f

’ d) (applying stand ard to nonjury proc eedi ng )

. If the potential impact did not influence the result or had only a slight effect, then the e rror is harmless. Jo hnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see S mith v.
State , 290 S .W.3d 3 68 , 375 (Tex. App.

— Ho u ston [14th Dist.] 2009, pet. ref ’ d) (applying standard to nonjury revocation proceeding)

. “ In sh ort, [the err or] must be substantial and injuri ous before reversal is permitted. ” Hastings , 20 S.W.3d at 79 1

. Article 39. 14 (a) requires th e S tate , upon timely request , to p roduce an d permit the inspection and electronic duplication of “ mat erial ” evidence by th e defense. Tex.
Code Crim. Proc Ann. art

. 3 9.14( a) ; see Watkins , 61 9 S.W.3d at 290 (defining

“ ma terial ” under Ar ticl e 39. 14 as “ hav in g a logical connecti on to a conseq uent ial f act ”
and “ synonymous with ‘ relevant ’ ” )

. The State has an additional , affirmati ve duty to di sclose “ exculpatory, impeachment, or mitigati ng ” materials that “ tend [] to negate
th e guilt of the defen dant or would t en d to reduce the puni shment for the offense charged. ” Tex. Code Crim. Proc Ann. art

. 39.14(h).
B. Harmless Error Sopk o argues th at he was ha rmed because “ if he could have shown the video and prepared with prior wit ness statements, he may h ave been ab le to persuade t he
tri al court to im pose a le sser punish ment due to t he circumstances of the underlyin g offense. ” W e will assume, without decid ing, three threshold matters: (1) th at the
video and w ritten statement wer e mat erial under A rticle 39.14; (2) th a t the trial c ourt10

err e d by denyi ng Sopko ’s mo tion for discovery ; and (3) that a ny assumed error rela ted
to Arti cle 39.14 implicated a substantial right

. H aving considered the whole record in light of our assumption s , we conclude that Sopko was not harmed b ecause any

a ssumed e r ror did not infl uence or had only a slight effect on the trial court ’ s

sentenc e . See Joh nson , 72 S.W.3d at 348

– 49

. The record reflects

— and Sopko con cedes

— that the State not only produced
the v ideo and written sta tement before Sopko pl eaded guilty to th e u nderlying assault , but it also exceeded its statutory dut y and provided him co pies of bot h befor e his original plea hearing

. See Tex. Code Cri m. Proc. A nn. art. 3 9.14( a) ( requi ring only that
the State “ pr oduce an d permit the inspect io n and the el ectronic duplication, copying, and p hotographing , by or o n be half of the de fe ndant ” and provid ing that the State

“ may provide to the defendant electroni c duplicat es of any docum ents or other
information described b y this a rticle ” ) (emphasis a dd ed) ; see Mun do v. St a te , No. 08

- 19

- 00077

- CR , 2020 W

L 5105210, at *4 (Tex . App.

— El P aso Aug. 31, 2020, no pet. ) (not designated for publication) (holding no violation of Article 39.14 when recor d show ed
that State initially produced ph otograph that later ca me up missing an d wh en defense
counsel admitted to p reviously examining p hotograph b ut failed to obtain or ask for a copy of photograph)

. Further, the video “ went vira l ” on Facebook , and it appea rs that Sopko ’ s revocation attorney k new of the video an d w ritten statement as he was the first to

ra ise the existence of both on direc t examinati on . See Means v. State , 429 S.W.2d 490 ,11

496 (Tex. Crim. A pp. 1968) ( “ If appel lant ’ s counsel, o f course, actually knew the fac ts

w h ich were withhel d, appellant cannot [l ater] seek relie f on t he ba sis of the State ’ s fa ilure to disc lose the same facts. ” ) ; Havard v. State , 800 S.W.2d 195, 204

– 05 (Tex. Crim. App. 198 9) (holding no error wher e excul patory e vidence was al legedly
withheld from defense becau se defen dant had ind ep endent knowledge of th e evi dence and evidence ha d been broadc ast on a local radio station) ; cf. S ibaluca v. State , No. 02

- 19

- 00150

- CR, 2020 WL 66 01608, at *8 (Tex. A pp.

— F ort Worth Nov. 12,
2020 , pet. ref

’ d) (mem. op., not d esig nated f or publication)

. Th er efore, t h e trial

cou rt ’ s de nial of Sopko ’ s motio n for di scove ry had little impact on the outcome because Sopko knew about the video and written s tatement and had bee n in physical
posses sion of both during the pendency of hi s criminal proceedings. See Me an s , 429 S.W.2d at 496

. Next , Sopko was not harme d because his right to acc ess the Article 39.14
materials exis t ed independent of the trial court ’ s denial of his moti on . W atkin s , 61 9 S.W.3d at 288 ( s t ating that d isclosur e under Article 39.14 “ is no longer l eft to the
discr etio n of th e trial court ” )

. Sop ko was not re quired to file a motion seeking a discovery order

— he merely needed to make a discov ery request to the S tate
. 4 Tex.

4 It is nota ble t hat t he record do es not reflect

— and Sopko never ar gues

— that the State e ve r rescinded its initial production or pr ohibited So pko from inspecting t he evidence before hi s revocation h earing. As far as he contends, without s upportin g aut hority, that the State was required to re

- produce its Article 39.14 ma terials prior to the revoc ation hearing, it logically follows that Sopko nee ded to first re

- produ ce his discovery requ est to the S ta te
. See Tex. Code Cri m. Proc. A nn. art 3 9.14(a).12

Code Crim . P roc. Ann. art. 39.14(a); Watk ins , 619 S.W.3d at 284

. W e also kno w that

t h e trial c ourt d

id or der the State to comp ly with all p roduction and disclosure requirements

. In fact, t h is standing discovery o rder was more expan s ive t han the order sought by Sopko in that it explicit ly requi r ed production of both Article 39.14

an d Brady material s . Pu t dif ferently, Sop ko w as not harmed because nothing in the record suggests that any obstacle existed to block hi m from accessing these materials prior to the revocation hearing

— th e trial court ’ s ruling on his mot ion did not hing to

c ha n ge th is.
So pko also a rgues that he was harmed by not having time to prepare f or the
h earing using the video and w itn ess statement. However, a ny such harm could have
been alleviated by a request for cont inuance. S ee Sibaluca , 2020 W L 6601 608, at * 7;
Br an um , 5 35 S.W.3d a t 22 6

– 27. Sopko ’ s revocation attorney did file a motion f or continuance bu t p r omptly withdrew it a fter his motion for discovery was denied

. In doing so , he forfeited any complaint of lack of time to prepare

. Bra num , 535 S.W.3d
at 22 6

– 2 7 Finally, Sopko ’ s arg um ents in the trial court and on appeal rely heavily on minimizing the u nderl ying assault to a mere “ scuffle between friends. ” He contends
that showing the video t o the trial court may have helpe d de monstrate this and that

How ev er, the re cord does not reflect that Sopko re

- produced his request, and we know that his motion for d iscovery d id not suff ice to trigger pr o duct

ion by the State

. Ma jors v. State , 554 S. W.3d 802, 80 7

– 08 (Tex. App.

— Waco 201 8 , no pet. ).13

having the w ritten statement may h ave impacted hi s pre paratio n for Br own ’ s

test imony about the assault

. However, the trial court made it cl ear that its sentence
was b ased on Sopko ’ s in ability to successful ly complete p robation :

THE COURT: And, Mr. Sopko, you come to Court asking f o r co mp assion, but you ’ v e done nothing on probation

. [ SOPKO ] : Yes, sir. THE COURT: Nothing. [ SOPKO ] : I und erstand that.
THE COURT: Zero.

. . . THE COURT: I can obvious ly see you ’ re a you ng man. [ SOPKO ] : Ye s, sir.
THE COURT: B ut there are con sequ en ces for action s; an d the

- - the underlying reason that you ’ re here, you told me you were guilty on b oth th ese counts. The time befor e I ’ m sure [I] as ked you a bunch of qu estions about explain ing

- - or if you u nderstood; and I
wo ul d anticipat e that yo u a nswered affir mativel y or we would not have gone for ward. But by the same to ken, the reason

- - at that time, you didn ’ t go to p rison; but when you don ’ t do anything in you r own felo ny probatio n

- - two felony pr obations and you do n ’ t do anythi ng ? I do n ’ t know wh at I ’ m supposed to expect.
T his exchange r eveals that the trial cour t ’ s sente nce w as grounded o n Sopko ’ s
p robation performance ra ther than the severit y of the underlying o ffense

. Thus, a ny

error linke d to the video and wr itten statement w as har ml ess because both pieces of
evidence related only to the underlying offense and were im material to the court ’ s14

sente nc ing determination

. C f. Fielder v. State , No s. 0 7

- 13

- 00353

- CR, 07

- 14

- 0423

- CR,
07

- 14

- 00424

- CR, 2015 WL 596557 9, a t *5 (Tex. App.

— Ama ril lo Oc t. 13, 2015, no
pet. ) (mem. o p., not designated for publication) (h olding no harm when trial court
admitt ed potentially inadmissible evide nce of extran eous off ense and imposed a

se ntence of incarceration a fter stating that it wou ld “ take [the evi de nce ] f or w hatever
purpose it takes it ” ) ; Herford v. State , 139 S.W.3d 733 , 735 (Tex. App.

— Fort Worth 2004, no pet.) ( “ We therefore assume the tria l court disregarded i nadmissible evidence
unless the r ecord clearly show s the contrary

. ” )

. I V
. C ONCLUSION
Hav ing r e vie wed the entire record and conclude d that Sopko was not harmed by any assumed error , we affirm the t rial court ’ s judgment.

/s/ Dana Womack
Dana Womack J us tice
Pu b lish
Delivered : December 16 , 2021