Ray, Zachery v. State

Affirmed and Memorandum Opinion filed February 15, 2007 Affirmed and Memorandum Opinion filed February 15, 2007. In The Fourteenth Court of Appeals _______________ NO. 14-06-00205-CR _______________ ZACHERY RAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 1011585 M E M O R A N D U M   O P I N I O N Zachery Ray appeals a conviction for aggravated robbery[1] on the ground that he was denied due process of law when the State withheld the results of DNA testing of clothing (the Aclothing@) found near the crime scene in violation of Brady v. Maryland, 373 U.S. 83 (1963). We affirm. A Brady violation occurs when the State suppresses, willfully or inadvertently, evidence favorable to the appellant.[2] See Youngblood v. W. Virginia, 126 S. Ct. 2188, 2190 (2006); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). When exculpatory evidence is not concealed, but disclosure is untimely, the defendant bears the burden to show that the delay resulted in prejudice. Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). Prejudice is not shown where the information is disclosed to the defendant in time for him to make effective use of it at trial. See Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). A defendant's failure to request a continuance indicates that tardy disclosure of evidence was not prejudicial. State v. Fury, 186 S.W.3d 67, 73-4 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d). In this case, Police Officer Sherrouse testified that he did not take a swab from appellant because the DNA testing of the clothing revealed no DNA and thus no DNA sample would be available for comparison. However, during a subsequent lunch break before the DNA analyst testified, the analyst informed the State that a DNA test had, in fact, yielded DNA results. The State immediately notified appellant=s trial counsel of this development (also before the analyst testified), which defense counsel acknowledged on the record. The DNA analyst then testified that several different male and/or female DNA were found on the clothing items, but that she was not given a sample of appellant=s DNA to compare to that found on the clothing. To clarify this situation, the State recalled Officer Sherrouse, who explained that he had received a letter from the DNA lab stating that no DNA had been discovered on the clothing submitted and that no further testing was therefore conducted. He also testified that he was never notified that DNA had later been recovered and was shocked to learn that a DNA profile had, in fact, been developed. On appeal, appellant argues that he was deprived of any opportunity to test the DNA evidence against the appellant=s DNA and call an expert to testify. However, because appellant failed to request a continuance after learning that DNA had been discovered, in order to obtain an opportunity to have it compared to his DNA, he waived any Brady complaint. See Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.CAustin 2002, pet. ref=d).[3] Accordingly, appellant=s issue is overruled, and the judgment of the trial court is affirmed. /s/ Richard H. Edelman Justice Judgment rendered and Memorandum Opinion filed February 15, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. Do not publish C Tex. R. App. P. 47.2(b). [1] A jury found appellant guilty and assessed punishment at fifteen years imprisonment. [2] The State's duty to reveal Brady material to the defense attaches when the information comes into the State's possession, whether or not the defense requested the information. Strickler v. Greene, 527 U.S. 263, 280 (1999); Harm, 183 S.W.3d at 407. However, the State is not required to seek out exculpatory evidence independently on appellant's behalf or furnish appellant with exculpatory or mitigating evidence that is fully accessible to appellant from other sources. Harm, 183 S.W.3d at 407. To demonstrate reversible error for violation of Brady rights, a defendant must show (1) the State failed to disclose evidence, regardless of the prosecutor's good or bad faith; (2) the withheld evidence is favorable to the defendant; and (3) the withheld evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Strickler, 527 U.S. at 281-82; Harm, 183 S.W.3d at 407. [3] See also Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (suggesting that the defendant was not deprived of opportunity to investigate witness in preparation for possible impeachment when there was no objection to witness=s testimony and no request for a continuance); Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) (holding that failure to request a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise); Fury, 186 S.W.3d at 74 (finding that, by not asking for continuance, defendant either waived Brady error or failed to show that any Brady error prejudiced him).