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No. 02-18-00434-CR
05-07-2020
Robert F. HALLMAN, Appellant v. The STATE of Texas
ATTORNEY FOR APPELLANT: LISA MULLEN, FORT WORTH, TX. ATTORNEY FOR STATE: JOSEPH W. SPENCE, CHIEF, POST CONVICTION, SHELBY J. WHITE, ASHLEA DEENER, SAMANTHA FANT, ASST. CRIM. DIST. ATTYS., FORT WORTH, TX.
ATTORNEY FOR APPELLANT: LISA MULLEN, FORT WORTH, TX.
ATTORNEY FOR STATE: JOSEPH W. SPENCE, CHIEF, POST CONVICTION, SHELBY J. WHITE, ASHLEA DEENER, SAMANTHA FANT, ASST. CRIM. DIST. ATTYS., FORT WORTH, TX.
Before Sudderth, C.J.; Gabriel and Wallach, JJ.
Opinion by Chief Justice Sudderth I. Introduction
Appellant Robert F. Hallman was indicted on one count of continuous sexual abuse of children (Amy and Rita). He was also indicted on two counts of aggravated sexual assault of a child under the age of 14, three counts of indecency with a child by contact, and one count of sexual assault of a child under the age of 17, but these charges involved only Amy.
We use pseudonyms for the complainants and their family members to protect the complainants' privacy.
Before trial, the State provided Hallman's defense counsel with a two-page notice of disclosure pursuant to Texas Code of Criminal Procedure Article 39.14 that did not include 13 pages of discovery regarding a separate August 10, 2014 incident between Hallman and Kim, who is Amy and Rita's mother and was a key witness for the State. Several witnesses testified about the August 10 incident during the guilt-innocence phase of trial, but the 13 pages were not disclosed to Hallman's defense counsel until the second day of the punishment phase of the trial, after the jury had acquitted him of the continuous-sexual-abuse count but convicted him of all of the remaining counts.
In addition to Kim's testimony, during the guilt-innocence phase of trial, the jury heard testimony from Rita, Amy, their older half-brother Martin, several police officers, a sexual assault nurse examiner, a forensic interviewer, a Child Protective Services investigator, and a community college program coordinator.
Hallman moved for a mistrial on the untimely disclosure. After the trial court denied Hallman's mistrial request, the jury assessed his punishment for each of the six counts at life imprisonment, and the trial court set those sentences to run concurrently.
In a single point, Hallman argues that the trial court abused its discretion by denying his request for a mistrial, complaining that the State violated Article 39.14's discovery requirements. We agree and therefore sustain Hallman's sole point, reverse the trial court's judgment, and remand the case for a new trial.
II. Background
A. Timeline
Hallman lived off-and-on with his wife Kim and the children—Rita, Amy, their younger brother Ron, and their younger sister Kelly—until August 2014. During Hallman and Kim's tumultuous 20-year relationship, they took turns calling the police on each other.
In 2016, Amy moved out and lived with Hallman in his vehicle. Not long thereafter, Rita made a delayed outcry of sexual abuse by Hallman, resulting in Hallman's arrest and Amy's return to Kim. Kim then filed for a divorce from Hallman, which was finalized on September 9, 2016. Prior to Hallman's original trial date on Rita's allegations, Amy made a delayed outcry of sexual abuse by Hallman, resulting in the trial's delay.
B. Testimony about the August 10, 2014 Incident during Guilt-Innocence
During the guilt-innocence phase of Hallman's trial, five witnesses were called to testify about the August 10 incident—Rita, Amy, Kim, the detective assigned to investigate the sexual abuse case, and one of the two officers who responded to the August 10 call. Depending upon which witness testimony is believed, the incident began either when Amy tried to leave with Hallman and Kim tried to stop her, or when Hallman hit Ron, Amy and Rita's younger brother. While the facts surrounding the incident provided the jury with insight into Hallman's relationship with Kim, Amy, and Rita, on appeal we will focus primarily on Kim's statement to the police and specifically whether she had mentioned her concerns that Hallman was sexually abusing Amy.
Fort Worth Police Sergeant Jonathan McKee, who investigated the sexual abuse allegations two years later, testified that on August 10, Rita had called the police to report the domestic disturbance and that Hallman was arrested as a result of that call.
Rita said that she had called the police that day because Hallman and Kim had gotten into an argument and had started fighting after Hallman hit Ron. Amy said that the altercation between Hallman and Kim began because Amy had wanted to leave with Hallman, and when Kim had grabbed her in a way that cut off her air supply, Hallman had tried to defend her.
Kim stated that Rita and Ron had each called the police to report that Hallman was assaulting her, that she had "told the police on August the 10th, 2014, that [she] had suspicions that [Hallman] may have been sexually molesting [Amy]," and that an officer had pulled Amy aside separately and spoke with her.
But Amy said that while she "[p]ossibly" or "probably" told the police that Kim had grabbed her in a way that kept her from being able to breathe, when she spoke with a CPS worker that day, she told the CPS worker "no" when asked if anyone had ever sexually abused her. Amy acknowledged that while Kim had been furious when Amy called Hallman to come get her, Kim had said nothing about being afraid that he was going to sexually abuse her. Rita also recalled speaking with the CPS worker and acknowledged that when the CPS worker asked her if anyone had ever touched her inappropriately, she had said, "No."
Crowley Police Detective Cesar Robles, who had worked for the Fort Worth Police Department on August 10, 2014, was called by the defense and testified that he was one of the two patrol officers who responded to the domestic disturbance call that day. He stated that Kim never told him or the other responding officer, Officer Oakley, that she was concerned that one of her children was being sexually abused and that if she had, they would have investigated further.
During cross-examination by the prosecutor, Detective Robles testified that he had no independent recollection about the incident except for his report. He did not remember what Amy, Kim, or Hallman looked like, and he did not recall whether they had been emotional. When asked whether in responding to the domestic disturbance, he would have gone over to any of the children involved and asked whether Hallman had touched them, Detective Robles replied, "No, ma'am," and agreed that such questioning would not have been appropriate. On redirect examination by the defense, Detective Robles agreed that Kim never mentioned concerns about sexual abuse. Officer Oakley was not called as a witness.
C. Disclosure during Punishment Phase
During the second day of the punishment phase of trial, Hallman's defense counsel notified the trial judge, who had not presided over the guilt-innocence phase of the trial, that the State had just disclosed new information to the defense, stating,
[F]or the record, we filed a 39.14 motion for discovery of all offense reports. And just this morning, about five minutes ago, all it took was the State to electronically make this discovery available. And I received 13 pages of discovery we've never seen before dealing with the August 10th, 2014, incident, which the Court doesn't know, but it's been litigated throughout this trial.
Among these records include a family violence packet we've never seen before. Among these records include an affidavit by C. Robles who has testified in this case, who we called and had no idea he provided an affidavit in connection with this case. Among these records include a statement by [Kim], one of the primary witnesses of the State, that we've never seen before in connection for this.
.... And our client gave a statement in connection with the 2014 offense that we've never seen before and have never been provided. That is a violation of 39.14, Judge.
....
... We have made strategic decisions based upon the state of discovery that we received, and we have done so to our detriment because this information has not been provided to us, Judge.
We don't have to specifically name which items we are entitled to because we don't know what the State has, and that's why we asked for everything. This isn't even gray. This is our client's statement. This is [Kim's] statement. This is a primary witness by the State that we've never been given this information of.
....
And not only that, Your Honor, just now in looking at [Kim's] statement, there are inconsistencies with her testimony. So we were not allowed to question her. And her credibility -- our whole Defense was that it was the mother who put these children up to making these statements. And anything we could do to impeach her credibility was crucial to this case. And I'm looking at the statement and seeing that there are inconsistencies with her testimony.
So it is crucially relevant to this, despite the fact that it involved a separate offense. The -- 38.37 allows them to go into the entire relationship between the defendant and the alleged victims, and that was a crucial part.
The prosecutor agreed that the August 10 offense had been litigated during the guilt-innocence phase of trial even though it was a separate offense. The prosecutor also stated,
[W]e have had so many different hearings on discovery in this case. I am trying to comply and give them everything that I possibly can. I ... when we have access to it, yes, it exists on TSP [the electronic discovery system]. They asked for the offense report. I made sure that they had the offense report. We -- they have asked for numerous things.[ ] It was my understanding that
The record reflects that before, during, and after the trial's guilt-innocence phase, defense counsel had difficulty in obtaining access to information from the State. For example, regarding access to CPS files involving Amy, on August 14, 2018, the trial court held a hearing on Hallman's motion for continuance based on an April 2016 police report indicating that Amy had been taken into CPS custody at that time and interviewed. Two weeks later, the trial court held another hearing regarding information from CPS's files. Three days after that, on August 31, 2018, the trial court held a hearing with the CPS caseworker who had interviewed Amy on April 7, 2016; the caseworker testified that Amy did not disclose any sexual abuse by Hallman during that interview. Before voir dire, the prosecutor informed the trial court that the State had given Hallman's counsel "a new 39.14 discovery document" because "there was some new information that was scanned."
During the guilt-innocence phase of trial, Hallman's defense counsel objected to photographs of Amy and Rita at the ages they were when the alleged abuse occurred, stating, "That wasn't provided to us as far as I can tell." The prosecutor responded that Kim had provided the photographs around a week ago, "so I don't know if I provided it to [the defense] ... since I've been gone for a week in Florida. But, I mean, I can certainly give [the defense] an opportunity to review them," and stated that the photos, albeit relevant, were "not evidence in the case as far as anything material to the case." The trial court delayed ruling on the objection to give the defense an opportunity to closely look at the photos. And when the defense objected to lack of notice about something that Amy called the "butt plug game" during her testimony, the prosecutor replied, "[I]t is in our notes and this has been open to the Defense." The trial court overruled the objection but noted,
It's my understanding that the notice was general as to what activities had occurred and general as to the terminology to describe those activities. And I will find that the notice that was given was adequate but only adequate, that a better practice would be to describe it more fully , but I don't think the testimony, when matched against the notice given, would create any sort of surprise that would be unfair and does not comply with Michael Morton and the rest of the Code of Criminal Procedure and the statutory and case law requirements for disclosure. [Emphasis added.]
On the same day of the punishment trial that the State disclosed the 13 pages at issue, the State also provided another exhibit—an offense report from a 1999 burglary of a habitation that was alleged to support indicting Hallman as a habitual offender—to the defense.
they have already subpoenaed all this stuff from Fort Worth Police Department because we had a discovery hearing months ago where they had issued two, three, five different subpoenas for all these records. So I actually thought Defense had more than we actually had in this case.[ ]
But we're not trying to hide anything. This is dealing with a 2014 report. They specifically asked for the offense report. We've given that report over to them. This is an – they've asked for the family violence packet now. This is an eight-page family violence packet. I think if the remedy is for 39.14, if they feel that this is something they need to go into, then how much time do they need to go through for an eight-page report? I mean, I just – Your Honor knows because you've been a part of this case for the last two years. I am trying to be as transparent and give them everything that I can.
In order to comply with Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), an individual prosecutor has a duty to learn of any "favorable" evidence known to the others acting on the government's behalf in a case, including the police. Strickler v. Greene , 527 U.S. 263, 281, 119 S. Ct. 1936, 1948, 144 L.Ed.2d 286, (1999). "Favorable" evidence includes impeachment evidence. Id. at 280, 119 S. Ct. at 1948. And under Brady , an inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment. Id. at 288, 119 S. Ct. at 1952.
The trial court then ordered a two-hour recess so that the defense could review the new materials and stated that the defense would be allowed to recall any witnesses it felt necessary, including Kim, to conduct cross-examination based on the newly disclosed information. Defense counsel pointed out to the judge that the relevant cross-examination should have taken place during guilt-innocence, not during punishment, and requested a mistrial; the trial court replied that a request for mistrial was premature, adding,
But if after you have reviewed those documents and if you feel like you need to recall [Kim], and we can even do that outside the presence of the jury, to see what her testimony would have been if
she'd been cross-examined based upon that statement, at that time if you need to move for a mistrial, you may do that and the Court will address it.
At the conclusion of the two-hour recess, the prosecutor informed the trial court that the defense had requested the family violence packet listed on the 2014 offense report that morning and that some of the previously undisclosed materials—a written statement by Kim and a written statement by Hallman—were "copy and pasted verbatim" into Detective Robles's August 10, 2014 offense report, which defense counsel had and used during the trial's guilt-innocence phase.
The offense report included a notation that Hallman was given a chance to write a statement, and it stated, "The Family Violence Packet was completed as well as an [emergency protective order], and turned in at the jail."
1. Detective Robles's August 10, 2014 Offense Report
The narrative in Detective Robles's August 10 offense report, which the parties used but did not offer into evidence during the guilt-innocence phase of the trial, stated that the 911 call details were that Kim and Ron had been hit in the face. Hallman told then-Fort Worth Police Officer Robles that Amy had wanted to leave with him and that Kim had followed them outside, grabbed Amy, and told her that she was not going anywhere and to go back inside the house. Amy told Hallman that she could not breathe, and Hallman grabbed Kim and tried to pull her away from Amy; he denied having hit Kim or anyone else in the process.
According to the report narrative, Kim told Officer Oakley that Amy had tried to go with Hallman to a residence where narcotics were being used and that she told Amy she could not go and grabbed her by the arm. After Hallman punched her right arm and twisted her arm behind her back, Kim used her left arm to hit him in the head, and when Ron saw what was going on, he ran up and bit Hallman on the back. Kim told Officer Oakley that Hallman hit Ron in the face and the stomach. When Officer Oakley spoke with a neighbor, the neighbor told him that Hallman and Kim had been arguing in the street "as they always do," Hallman hit Kim on her arm and twisted her arm behind her back, and Ron came up and did something to Hallman's back. Hallman then "threw his arm back, and it was unclear if there was any contact made to [Ron] or not."
According to the report's narrative, Kelly, Amy and Rita's younger sister, gave the same account to the police as Kim, while Amy gave the same account as Hallman, but when asked for more details, Amy "got upset and went inside the residence." The report stated, "When [Hallman] was given his chance to write his statement, he advised that [Ron] did bite him, but he did not hit [Ron] unless it was by accident."
2. The Undisclosed Written Statements and Affidavit
Hallman's handwritten statement set out the following,
Prior to having [Rita] call the police I made every effort to get away from [Kim] by going next door to my nei[ghbor's] house to wait on my sister to pick [up] me and ... [Amy], [Kim] followed us next door and beg[a]n to grab on me and then grab on ... [Amy] and she started having an asthma attack saying she couldn't breathe[.] I beg[a]n to pull [Kim] to free [Amy] so she could breathe[.] In the process [Ron] bit me in the back, he's eight no big deal but I did not strike [Ron][;] because of all the
wrestling he got bumped but not struck by me intentionally to harm him.
Kim's handwritten statement set out the following,
This morning [Amy] was trying to leave with [Hallman] to go with him to his sister['s] house to smoke marijuana openly[.] I refused to let he[r] go in that environment with him. [Hallman] told her to run away. I went after her to the neighbor[']s house and asked her to come back home and I took her by her arm at the wrist and tried to pull her back and that's when Mr. Hallman hit me in my right arm and twisted my arms behind my back and when [Ron] seen him hit me h[e] tried to protect me and bit him and in return Mr. Hallman hit him in the face and stomach[.]
Detective Robles's affidavit contained the same information as his offense report. The offense report and Hallman's and Kim's statements were admitted for record purposes as State's Exhibits 36, 37, and 38. These items, along with the family violence packet—which included a request for an emergency protective order—were admitted for record purposes as Defense Exhibit 28. The family violence packet includes the instruction, "If the officer feels like the situation is detrimental to the children in the home, the officer should make a report to CPS." Kim and Ron were listed as victims; Rita, Amy, Ron, and Kelly were listed as children who had seen the incident and were interviewed. Rita's, Amy's, and Kelly's demeanors were check-marked as "calm." Defense Exhibit 28 also contained Hallman's jail paperwork listing the charged offenses arising out of the August 10 incident as assault-bodily injury to a family member and injury to a child.
3. Arguments and Requested Relief
The defense argued that it had put on Detective Robles's testimony "believing that the only information he had was contained in his offense report," that a large part of the case centered on Kim's credibility, and that if it had had Kim's written statement to the police that did not mention sexual abuse—contrary to her claim that she had expressed her concerns to the officers—Hallman would have had "a far different cross-examination" of her. The defense again requested a mistrial, stating that the State's failure to disclose under Article 39.14 affected Hallman's trial strategy, including defense counsel's recommendation not to testify during guilt-innocence, and infringed on the defense's ability to effectively cross-examine Kim, Amy, and Detective Robles.
The defense requested, in the alternative, that the trial court allow the visiting judge who heard the guilt-innocence phase to preside or to grant a continuance for the trial judge to review the pertinent portions of the trial record. The defense did not file a sworn, written motion for continuance or recall Kim or any other witness outside the jury's presence to demonstrate what impeachment with the recently disclosed materials could have shown.
4. Trial Court's Ruling
The trial court denied the defense's requests, observing that after comparing the information contained in Detective Robles's offense report to Hallman's and Kim's written statements, "the essential information from those two statements is contained" in the offense report. The trial court elaborated by stating,
[T]he Court has reviewed State's Exhibits 36 and 37 and 38. And for the record, all of these pertain to an extraneous offense, not the offense that the defendant is being tried for in this trial, but an extraneous offense from August 12th, 2014. And in that offense, the victim is [Kim] not the two victims in this case.
And the Court has further reviewed what is contained in the report by the officer in State's Exhibit 36 and compared that to the written statements of Robert Hallman in State's Exhibit 37 and [Kim] in State's Exhibit 38. And the essential information from those two statements is contained on Page 4 of State's Exhibit 36.
So the Court rules that for purposes of 39.14, that State's Exhibits 37 and 38 are not material in that their omission would not create a reasonable doubt that did not otherwise exist.
....
So your motion for a mistrial is denied, and your motion for a continuance is denied.
When defense counsel urged reconsideration, the trial court responded, "And, once again, the Court is not ruling that everything contained in State's Exhibit 36 is not relevant and not material, but the Court is merely ruling that there is not additional information in State's Exhibits 37 and 38 that are not contained in State's Exhibit 36, and that is the Court's ruling." Hallman did not file a motion for new trial or file a formal bill of exception. See Tex. R. App. P. 21.2, 33.2.
III. Discussion
Hallman argues in his sole point that the trial court abused its discretion by denying his motion for mistrial because the State violated Article 39.14's discovery requirements. The State responds that any failure to timely disclose was harmless because the evidence was not "material."
In his sole point, Hallman also argues that the trial court also abused its discretion by ruling on the motion for mistrial when that judge did not preside over the guilt-innocence phase of trial and urges us to reconsider the standard of "materiality" under Article 39.14(a), referring us to Watkins v. State , 554 S.W.3d 819 (Tex. App.—Waco 2018, pet. granted). Based on our resolution below, we do not reach these arguments or the State's responses to them. See Tex. R. App. P. 47.1.
A. Standard of Review
We review the denial of a motion for mistrial for an abuse of discretion, meaning that we must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie v. State , 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007) ; Marchbanks v. State , 341 S.W.3d 559, 561 (Tex. App.—Fort Worth 2011, no pet.). Only in extreme cases, when the prejudice is incurable, will a mistrial be required. Marchbanks , 341 S.W.3d at 561, 563 (reviewing Brady complaint). Generally, in determining whether a trial court abused its discretion by denying a mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of conviction or the punishment assessed absent the misconduct. Hawkins v. State , 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) ; Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh'g).
But we will not apply these factors here because the disclosure requirements under Article 39.14 parallel those under Brady and the policies that underlie it. And Brady violations are treated differently. See Kyles v. Whitley , 514 U.S. 419, 435, 115 S. Ct. 1555, 1566, 131 L.Ed.2d 490 (1995) (explaining that a reasonable probability that the undisclosed evidence would have resulted in a different outcome necessarily entails the conclusion that the suppression must have had a substantial and injurious effect or influence in determining the jury's verdict); Hampton v. State , 86 S.W.3d 603, 612 (Tex. Crim. App. 2002) (stating that Brady 's three-prong test for reversible error is entirely different from Texas Rule of Appellate Procedure 44.2(a)'s constitutional harmless error standard).
To establish reversible error based on a Brady violation, an appellant must meet a three-prong test: (1) that the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) that the withheld evidence is favorable to him; and (3) that the evidence is material in that there is a reasonable probability that had the evidence been disclosed, the trial's outcome would have been different. See Pena v. State , 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (setting out Brady three-prong test). The remedy for a Brady violation is a new trial. Ex Parte Miles , 359 S.W.3d 647, 664 (Tex. Crim. App. 2012).
We will apply the Brady three-prong test in our analysis of Hallman's Article 39.14 -based complaint. See Branum v. State , 535 S.W.3d 217, 224–25 (Tex. App.—Fort Worth 2017, no pet.) ; see also Ray v. State , No. 10-17-00394-CR, 2018 WL 4926215, at *5–6 (Tex. App.—Waco Oct. 10, 2018, pet. ref'd) (mem. op., not designated for publication) (considering Brady and Article 39.14 claims together but holding that failure to request a continuance waived any alleged violation under either).
B. Preservation of Error
We observe at the outset that there is an unraised issue of whether a motion for continuance that complies with the Texas Code of Criminal Procedure's requirements—i.e., that it be in writing and sworn—is required to preserve an Article 39.14 complaint. See Ray , 2018 WL 4926215, at *7 n.3 (Gray, C.J., concurring) (setting out steps a careful attorney should take "[u]ntil the issue of whether a formal motion for continuance is necessary to preserve an issue regarding whether the State failed to comply with disclosure under article 39.14" is decided); Prince v. State , 499 S.W.3d 116, 121 (Tex. App.—San Antonio 2016, no pet.) (holding that by failing to file a sworn, written motion for continuance, the appellant failed to preserve error on his Article 39.14 or Brady complaints upon which his denial-of-continuance argument was based but addressing appellant's denial-of-mistrial complaint separately); Apolinar v. State , 106 S.W.3d 407, 421 (Tex. App.—Houston [1st Dist.] 2003) ("When evidence withheld in violation of Brady is disclosed at trial, the defendant's failure to request a continuance waives the error or at least indicates that the delay in receiving the evidence was not truly prejudicial."), aff'd on other grounds , 155 S.W.3d 184 (Tex. Crim. App. 2005) ; see also Ahn v. State , No. 02-17-00004-CR, 2017 WL 6047670, at *6 n.4 (Tex. App.—Fort Worth Dec. 7, 2017, no pet.) (mem. op., not designated for publication) ("[T]o preserve a Brady complaint when Brady evidence is disclosed at trial, a defendant generally must request a continuance."). Because error preservation is a systemic requirement, we must independently review this unraised issue; we have a duty to ensure that a claim is properly preserved in the trial court before we address its merits. Darcy v. State , 488 S.W.3d 325, 327–28 (Tex. Crim. App. 2016).
The record reflects that Hallman moved for a mistrial on the basis of Article 39.14 regarding the undisclosed evidence and moved, in the alternative and on the same basis, for a continuance but did not file a written, sworn motion for that continuance. The trial court granted Hallman two hours to review the undisclosed 13 pages. Hallman complains only of the denial of his motion for mistrial on appeal.
We find some of the reasoning in the concurring opinion in Ray helpful to our error-preservation determination here. In the concurrence to Ray , Chief Justice Gray noted that a request for a continuance requires certain procedural requirements "that are simply not present in a motion for mistrial" and that a defendant should not be required to seek a continuance as a prerequisite to preserve error as to the denial of a mistrial when the State has failed to comply with statutorily required discovery. Ray, 2018 WL 4926215, at *7 (Gray, C.J., concurring). That is, the denial of the motion for mistrial should be sufficient when the defendant has obtained an adverse ruling from the trial court for the relief requested, per Texas Rule of Appellate Procedure 33.1, and "it should not be the defendant's burden to properly request a continuance and thus convert the issue from a failure to grant a mistrial to a failure to grant a continuance." Id. at *7 & n.3. We agree, particularly under the circumstances here, under which the granting of a continuance would not have allowed the defense to revisit the relevant guilt-innocence portion of trial to prepare and adjust any trial strategies. See Little v. State , 991 S.W.2d 864, 867 (Tex. Crim. App. 1999) (explaining that to prevail under Brady , a defendant must show not only a failure to timely disclose favorable evidence but also that he was prejudiced by the tardy disclosure).
We hold that when an oral motion for continuance is made on the same Article 39.14 basis as a motion for mistrial, the trial court rules on both, and a continuance would serve no useful purpose, a defendant does not need to file a written, sworn motion for continuance in order to preserve his Article 39.14 -based denial-of-mistrial complaint for our review. Cf. Branum , 535 S.W.3d at 226–27.
One of the Article 39.14 complaints raised by the defendant in Branum was the State's late designation of an expert witness, which was made less than 20 days before trial. 535 S.W.3d at 222, 226–27. Regarding that issue, we held that because the defense had failed to request a continuance based on the late designation, this rendered any error by the trial court harmless, but we also noted that the defendant could have reasonably anticipated that the witness from the medical examiner's office would testify in the intoxication manslaughter trial. Id. at 226–27 ; see also Moore v. State , No. 02-17-00277-CR, 2018 WL 3968491, at *10 (Tex. App.—Fort Worth Aug. 16, 2018, pet. ref'd) (mem. op., not designated for publication). In Moore , the prosecutor thought that the nine-page sexual-assault exam report of a fourth sexual abuse victim (not one of the complainants) had been made available via TechShare—the system through which the State electronically shares documents with defense attorneys—but the failure to have "click[ed] on a button" was discovered during the trial's punishment phase. 2018 WL 3968491, at *1, *10. Defense counsel was allowed to review the report during a pause in the proceedings and then made his objections but did not request additional time to review the document, and he cross-examined the witness but did not try to impeach her testimony with the disputed document. Id. at *10. We held that the defendant had waived his Michael Morton Act complaint because he did not request a continuance. Id. Both of these cases are distinguishable from the facts before us: in Branum , the late designation occurred before trial, when a continuance could have actually been useful to the defense, and in Moore , the information was disclosed with regard to a punishment witness during the punishment phase of trial—again, when a continuance could have actually been useful to the defense.
C. Texas Code of Criminal Procedure Article 39.14, Branum, and Watkins
The Legislature passed the Michael Morton Act to make criminal prosecutions more transparent by ensuring that criminal defendants can review many of the State's discovery materials above and beyond those that are purely exculpatory. Love v. State , No. 02-19-00052-CR, 600 S.W.3d 460, 464–65 (Tex. App.—Fort Worth Mar. 26, 2020, no pet. h.) ; see Gerald S. Reamey, The Truth Might Set You Free: How the Michael Morton Act Could Fundamentally Change Texas Criminal Discovery, or Not , 48 Tex. Tech L. Rev. 893, 897 (2016) ("Prior to 2014, Texas discovery law ... inhibited the ability of the criminally accused to obtain useful material from the [S]tate in a timely fashion."). That is, the Act's purpose is to reduce the risk of wrongful conviction, which is high when criminal defendants "are systematically denied information about the [S]tate's case until it is revealed at trial." Reamey, 48 Tex. Tech. L. Rev. at 899–900 (explaining that after serving almost 25 years of a life sentence, Morton was exonerated by evidence that had previously been undisclosed due to prosecutorial misconduct).
Accordingly, in 2013, when the Texas Legislature unanimously passed the Act, it dramatically expanded the scope of discovery provided for in Texas Code of Criminal Procedure Article 39.14. See Act of May 14, 2013, 83rd Leg., R.S., ch. 49, § 2, 2013 Tex. Gen. Laws 106, 106–07; see also Branum , 535 S.W.3d at 224 (" Article 39.14 is a comprehensive discovery statute that provides limited authorization for a trial court to order discovery....").
Before the 2013 amendments, Article 39.14(a) provided that if the defendant filed a motion showing good cause, the trial court was required to order the State before or during trial to produce documents designated in the motion, including the defendant's written statement (but not written statements of witnesses or work product) as long as those documents contained evidence material to any matter involved in the action that was in the State's possession, custody, or control, as set out in full below:
Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.
Act of May 18, 2009, 81st Leg., R.S., ch. 276, § 2, 2009 Tex. Gen. Laws 732, 733 (amended 2013).
After the 2013 amendments, which became effective on January 1, 2014, Article 39.14(a) provided that as soon as practicable upon a timely request from the defense, the State had to produce any offense reports and any written or recorded statements of the defendant or of a witness, in addition to any designated documents (excluding work product) that contained evidence material to any matter involved in the action and in the State's possession, custody, or control, as set out in full below:
Subject to the restrictions provided by Section 264.408, Family Code, and
Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.
Tex. Code Crim. Proc. Ann. art. 39.14(a).
The amendments also added twelve new subsections, two of which—subsections (h) and (k)—are also pertinent to the issue before us. See id. art. 39.14(h), (k). Subsection (h), a codified Brady provision, states, "Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged." Id. art. 39.14(h). Subsection (k), which requires ongoing disclosure, states, "If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court." Id. art. 39.14(k).
The recent changes to Article 39.14 create a general, continuous duty by the State to disclose before, during, or after trial any discovery evidence that tends to negate the defendant's guilt or to reduce the punishment he could receive. Ex parte Martinez , 560 S.W.3d 681, 702 (Tex. App.—San Antonio 2018, pet. ref'd) ; Cynthia E. Hujar Orr & Robert G. Rodery, The Michael Morton Act: Minimizing Prosecutorial Misconduct , 46 St. Mary's L.J. 407, 414 (2015) (stating that "for the first time, the prosecution is under a statutory duty to continually disclose exculpatory evidence").
The Michael Morton Act is essentially a state statutory extension of Brady , in which 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." 373 U.S. at 87, 83 S. Ct. at 1196–97 (observing that society wins not only when the guilty are convicted but also when criminal trials are fair and that our judicial system suffers when any accused is treated unfairly); see United States v. Agurs , 427 U.S. 97, 104, 96 S. Ct. 2392, 2398, 49 L.Ed.2d 342 (1976) ("A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial."); Pena v. State , 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (" Brady essentially created a federal constitutional right to certain minimal discovery.").
Agurs eliminated the requirement that a request to disclose exculpatory evidence be made. 427 U.S. at 107, 96 S. Ct. at 2399 ("[I]f the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made."); see Ex parte Chaney , 563 S.W.3d 239, 266 (Tex. Crim. App. 2018) (citing Agurs for the proposition that the defense need not request disclosure of Brady evidence because the State's duty to disclose such evidence is an affirmative one).
By instituting what amounts to a legislative "Open File" policy in advance of trial, the Michael Morton Act sets out a methodology to enhance the fairness of the trial process and to prevent wrongful convictions by giving the defense access to information the existence of which it might otherwise have to guess. See generally Ex parte Temple , No. WR-78,545-02, 2016 WL 6903758, at *3 n.20 (Tex. Crim. App. Nov. 23, 2016) (not designated for publication) (recognizing that "[t]he Michael Morton Act created a general, ongoing discovery duty of the State to disclose before, during, or after trial any evidence tending to negate the guilt of the defendant or reduce the punishment the defendant could receive"); Young v. State , 591 S.W.3d 579, 598 (Tex. App.—Austin 2019, pet. ref'd) ("When the [L]egislature passed the Michael Morton Act, it amended article 39.14 of the Code of Criminal Procedure to expand the availability and scope of discovery that must be produced by the State."); Murray v. State , No. 08-16-00185-CR, 2018 WL 1663882, at *4 (Tex. App.—El Paso Apr. 6, 2018, pet. ref'd) (mem. op., not designated for publication) ("The Michael Morton Act changed Texas law related to discovery in criminal cases in order to prevent wrongful convictions by ensuring defendants have access to the evidence in the State's possession so they may prepare a defense."). But see Agurs , 427 U.S. at 111, 96 S. Ct. at 2401 (rejecting suggestion that prosecutor has a constitutional duty to deliver his entire file to defense counsel).
In Temple , the prosecutor did not turn over evidence that she believed to be irrelevant. 2016 WL 6903758, at *3 (noting that a prosecutor who errs on the side of withholding evidence from the defense runs the risk of violating Brady and holding that prosecutor's misconception regarding her duty under Brady was of enormous significance). Defense counsel had requested copies of the offense reports in the case—approximately 1,400 pages, some of which contained favorable evidence that would have allowed a more effective presentation of an alternate suspect—but was denied access to them. Id. The court opined that the Michael Morton Act "was created to avoid problems exactly like those that arose in this case." Id. at *3 n.20.
"Favorable evidence" includes both exculpatory evidence and impeachment evidence. Chaney , 563 S.W.3d at 266 ; see Strickler , 527 U.S. at 280, 119 S. Ct. at 1948 ("We have since held ... that the [ Brady ] duty encompasses impeachment evidence as well as exculpatory evidence."); see also Kyles , 514 U.S. at 437, 115 S. Ct. at 1567 ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."). Impeachment evidence is evidence that "disputes, disparages, denies, or contradicts other evidence." Chaney , 563 S.W.3d at 266. But materiality, a legal question that we review de novo, remains the linchpin of both Article 39.14(a) and Brady . See Tex. Code Crim. Proc. Ann. art. 39.14(a) ; Chaney , 563 S.W.3d at 264 ; see also Strickler , 527 U.S. at 282, 119 S. Ct. at 1948. "To establish that requested evidence is material, a defendant must provide more than a possibility that it would help the defense or affect the trial." Branum , 535 S.W.3d at 224. That is, to be considered material and subject to mandatory disclosure under Article 39.14(a), such evidence must be indispensable to the State's case or must provide a reasonable probability that its production would result in a different outcome. Id. at 225 ; see Ehrke v. State , 459 S.W.3d 606, 611 (Tex. Crim. App. 2015) ("Evidence is material if its omission would create ‘a reasonable doubt that did not otherwise exist...." (quoting Agurs , 427 U.S. at 112, 96 S. Ct. at 2402 )); see also Chaney , 563 S.W.3d at 263–64, 266 (stating that false evidence is material when there is a "reasonable likelihood" that it would have affected the jury's judgment and that suppressed evidence is material if there is a reasonable probability that the trial's result would have been different if the suppressed evidence had been disclosed to the defense). "A reasonable probability is one sufficient to undermine confidence in the outcome of the trial." Chaney , 563 S.W.3d at 266 ; see Wearry v. Cain , ––– U.S. ––––, 136 S. Ct. 1002, 1006, 194 L.Ed.2d 78 (2016) (stating, under Brady , that the defendant need not show that he "more likely than not" would have been acquitted had the new evidence been admitted but rather "only that the new evidence is sufficient to ‘undermine confidence’ in the verdict").
A cumulative evaluation of the materiality of wrongfully withheld evidence is required rather than considering each piece of withheld evidence in isolation. Wearry , 136 S. Ct. at 1007 (citing Kyles , 514 U.S. at 441, 115 S. Ct. at 1569 ). Therefore, "[w]e analyze an alleged Brady violation ‘in light of all the other evidence adduced at trial.’ " Pitman v. State , 372 S.W.3d 261, 264 (Tex. App.—Fort Worth 2012, pet. ref'd) (quoting Hampton , 86 S.W.3d at 612–13 ). And "[s]ometimes, what appears to be a relatively inconsequential piece of potentially exculpatory evidence may take on added significance in light of other evidence at trial." Hampton , 86 S.W.3d at 613. In that type of case, "a reviewing court should explain why a particular Brady item is especially material in light of the entire body of evidence." Id.
In Branum , our most recent published opinion on the subject of materiality under the Michael Morton Act, the defendant was charged with intoxication manslaughter after she "T-boned" another driver when she ran a red light; with regard to Article 39.14, she sought production of the deceased's phone. 535 S.W.3d at 220–21, 223–25. The trial court reviewed the phone's contents in camera and held that they disclosed nothing relevant or material. Id. at 222. The phone's contents were not made a part of the appellate record, id. at 221 n.5, but the State established that the phone was not in use at the time of the accident. Id. at 224. We held that Branum's assertion that the phone "could have" revealed significant data was nothing more than a mere possibility, insufficient for purposes of mandatory disclosure under Article 39.14(a), and that she had failed to meet her burden to show that the records were essential or material to a matter involved in the case. Id. at 225.
We addressed the Michael Morton Act in Coleman v. State , 577 S.W.3d 623, 634 (Tex. App.—Fort Worth 2019, no pet.), but in the context of disclosure of a confidential informant's identity. We also addressed the Michael Morton Act in Moody v. State , 551 S.W.3d 167, 171–72 (Tex. App.—Fort Worth 2017, no pet.), but in the context of video recordings that were no longer in existence at the time the defendant requested them. And we addressed it in Love , but in the context of whether the trial court abused its discretion by disqualifying the appellant's retained defense counsel after he improperly gave his copy of the State's discovery to the appellant's wife. 600 S.W.3d at 464–65, 475–76, 477–76 (noting that the Act does not have any mechanisms for dealing with discovery violations on defense counsel's part).
In addition to her Article 39.14 complaints about the deceased's phone and the late expert designation, the defendant in Branum also complained that she did not receive the bar manager's statement to the Texas Alcoholic Beverage Commission. 535 S.W.3d at 225–26. We held that even if TABC were considered to be the "State" for Article 39.14's purposes, applying the nonconstitutional harm analysis under Texas Rule of Appellate Procedure 44.2(b), Branum did not show that failing to order the State to disclose the statement affected her substantial rights by denying her access to evidence that would have changed the trial's outcome in her favor when another witness testified to the same facts, without objection, as the bar manager: Branum's time of arrival at the bar, her approximate number of drinks, and her time of departure. Id.
The parties direct us to Watkins , a drug possession case now pending in the Texas Court of Criminal Appeals. In that case, the Waco court declined the appellant's invitation to reconstrue the meaning of "material" in the Michael Morton Act. 554 S.W.3d at 824 n.1 (op. on reh'g). While acknowledging that the Legislature anticipated and probably intended a "sea change in criminal discovery," the court held that it was not at liberty to disregard that interpretation because the Legislature did not change the term "material" in the existing statute, which had already been interpreted by the state's highest criminal court. Id.
The complaint in Watkins was that the State had violated Article 39.14 by failing to provide penitentiary packets and booking sheets before trial and that the trial court had therefore abused its discretion by admitting those items into evidence during the trial's punishment phase. Id. at 820. Applying the pre-Michael Morton Act definition of materiality, the court held that because the State had provided notice of its intent to produce evidence of the convictions under Article 37.07 to establish the enhancement paragraphs of the indictment and to seek a longer sentence and because the appellant had pleaded true to the enhancement paragraphs at the punishment hearing, there was no reasonable probability that the trial's outcome would have been different or that his sentence would have been reduced if the exhibits had been produced before trial. Id. at 822.
The Austin court has also recently considered materiality under the pre-Michael Morton Act standard. See Young , 591 S.W.3d at 597–98. In Young , the defendant, an attorney, was charged with forgery, theft, and money laundering after his client died and left a holographic will purporting to name the attorney as his sole beneficiary two months after they met. Id. at 585–86, 589. On appeal, the attorney complained that the State had failed to disclose information under Brady and Article 39.14 that exculpated him and inculpated someone else as the actual offender or as someone of "greater blameworthiness" and that could have led to the discovery of other exculpatory information. Id. at 597. He contended that the State had improperly suppressed evidence from, and pertaining to, the ex-wife of an alleged accomplice, and he attached her affidavit to his motion for new trial. Id. at 598–99.
The trial court held a hearing on the motion for new trial and concluded that (1) the defendant had failed to prove that any of the information that he did not already have showed a reasonable probability of a different outcome at trial based on the credibility (and lack thereof) of the previously undisclosed witness and (2) the witness's statements, even if they had been disclosed and used effectively, would not have made a difference between conviction and acquittal. Id. at 602–03. The Austin court reviewed the record and the trial court's findings of fact and conclusions of law, held that the record supported those findings, and accordingly overruled the Brady /Michael Morton issue. Id. at 603.
D. Guilt-Innocence Evidence
Because we must analyze the alleged violation in light of all the other evidence adduced at trial, see Pitman , 372 S.W.3d at 264, we have reviewed the entire record of the guilt-innocence phase of the trial. Rita, Amy, Kim, and Martin testified about Hallman and Kim's turbulent relationship, and Rita and Amy testified about various alleged acts of sexual abuse perpetrated by Hallman from 2010 to 2014, starting when each was around twelve years old. Rita, Amy, and Kim testified about Hallman's grooming actions and his sabotaging Kim's relationships with Rita and Amy, but all three acknowledged that sometimes Hallman—not Kim—called the police or CPS. While Kim said that she talked with Rita and Amy about "stranger danger" and sexual abuse awareness but did not tell them that she had been sexually abused by her stepfather, Amy testified that Kim had told them about being sexually abused.
Kim and Hallman would fight and then Kim and the children would move; Hallman would move in with them again later. After his August 10, 2014 arrest, Hallman no longer lived with them, but he still had visits with the children "after the CPS case was cleared and closed."
The forensic interviewer testified that "grooming" is a term used to describe how a sexual abuse perpetrator gains access to his or her victim with the purpose of developing some kind of trust or relationship so that when the perpetrator decides to act, the victim is conflicted about telling. Threats would also fall into the grooming category, i.e., when a perpetrator tells a child that if the child discloses the abuse, someone would get hurt or something bad would happen to the child or the child's family. She said that other examples of grooming included using religion to justify the abuse and buying things for the victim "like lingerie, bras, sex toys, things like that."
Rita said that if she or Amy wanted something from Hallman, he would tell them "to do things like to him, or [they] had to let him see one of [their] private parts if [they] wanted something like clothes or shoes or anything. And ... he would also have [them] smoke weed with him." Rita and Amy said that he showed favoritism to them over Ron or Kelly, the household's two younger children; Kim confirmed that he treated Rita and Amy more generously than their younger siblings. Kim said that Hallman would take Rita and Amy to buy lingerie when Rita was fourteen or fifteen years old and Amy was almost thirteen years old. Amy said that when she was bullied at school, Hallman "would just give [her] things," including words of encouragement, which drew her to him, and that he warned her that if she told anyone about the sexual abuse, he would go to jail. Amy also stated that Hallman told her that "God said it's nothing wrong with what he's doing."
Kim testified that Hallman was different with Amy than with anyone else and treated Amy like a wife, stating during her direct examination,
He kept her close to him all the time. He did not allow her to leave out of his sight. He did not allow her to leave and go anywhere with me. He would have her outside in the truck with him at -- late at night on school nights, which I complained tremendously about. He said he was spending time with her. He would have her to walk outside in a -- her -- just her robe to get in the truck with him, which I told him that was very appropriate [sic]. When she would spend the night when he was not in our -- residing in the home and he was residing with his sister, he would sleep in the room with her. And I had objections to
that, and I told him that she could no longer go and spend the night, neither could the other two younger children because that was inappropriate for him to sleep in the room.
During Kim's cross-examination, she elaborated as follows,
Q. And, in fact, you thought that there were things going on that concerned you, such as [Hallman] going out to the car late in the evening with [Amy]. Is that what you said?
A. I didn't say late in the evening. I said late at night at 1 o'clock, 2 o'clock in the morning.
Q. Okay. And that would be very strange, wouldn't it?
A. Yes.
Q. Okay. That would definitely be inappropriate from him to take your daughter out at 1:00 in the morning to sit in a car, wouldn't it?
A. He wouldn't actually take her out. He would call her to come out to the car with him.
Q. Okay. And you didn't go out there to see what was going on?
A. Yes, I did on -- on a few occasions.
Q. Just a few?
A. Yes, to see what was going on.
Q. And --
A. They'll be just sitting in the car, and I would make her come in. But with his rage and fits and the abuse that I would have to suffer from whatever I -- whatever instruction I would give the kids or directions, you know, I would tell them to come in, but he would tell them they didn't have to.
Kim did not call the police regarding those incidents but acknowledged that she had called the police on more than one occasion before, and that if she had thought something sexual was going on in the car between Hallman and Amy, that would have warranted calling the police. Two weeks after Hallman was arrested in 2016, Kim retrieved his truck, which had all of Amy's clothing in it as well as Hallman's phone and some of his possessions, from the parking lot. Kim said that she did not call the police and tell them about Hallman's possessions because they were still married at the time so it "was community property." She drove the truck for two weeks and then returned it to CarMax, where Hallman had bought it. She left all of Hallman's belongings in the car when she returned it to CarMax.
Officer McKee testified that he did not know what had happened to Hallman's vehicle after Hallman's arrest but that Amy was found waiting in the vehicle for Hallman on the day of the arrest. Officer McKee acknowledged that "[a]nything is possible" when asked on cross-examination that there might possibly have been evidence of sexual assault when Hallman and Amy had been living in the vehicle.
Kim said that she had asked Hallman several times if "anything was going on with him" and Amy but that he told her that she was crazy and that he had threatened that if she ever sent him to jail, he would kill her.
Amy and Rita were sent to counseling by CPS in 2015 because they had witnessed the 2014 assault, and Kim said that she told Amy's counselor that she was concerned about Amy's relationship with Hallman. Kim said that she did not know how to bring up the topic of sexual abuse, stating that she told the counselor that Amy and Hallman "had like an enmeshment type of relationship" in which Amy was losing her identity.
Amy denied that she and Rita had ever discussed Rita's sexual abuse allegations against Hallman before Amy made her outcry, but she said that she had witnessed Hallman sexually abusing Rita in the bedroom that she and Rita had shared. Kim admitted that she did not allege sexual abuse in the divorce petition that she filed against Hallman in May 2016, a couple of months after Rita made her outcry, even though she specifically referenced domestic abuse.
Rita testified that Kim did not tell her what to say while testifying and that she had told the truth. When asked whether she had told Rita and Amy to lie, Kim said, "I would never tell them to lie on [Hallman]. I would never lie on something that serious." Kim also testified about her medical and work history, which she said kept her from being aware of what happened at home, and she denied that she had ever been abusive to Hallman.
Kim testified that she took 26 different medications, for lupus, high blood pressure, heart problems, rheumatoid arthritis, bipolar disorder, epileptic seizures, lymphatic problems, and thyroid problems.
Officer McKee investigated Rita's delayed outcry in March 2016, four days after Amy left home to live with Hallman. He set up Rita's forensic interview and sexual assault exam and obtained an arrest warrant for Hallman, which was executed on April 7, 2016, and Amy was returned to Kim.
Officer McKee was notified on February 12, 2017—the day before Hallman's trial on Rita's allegations was supposed to begin—that Amy had made an outcry, and he set up a forensic interview and sexual assault exam for her. Officer McKee testified that because Rita and Amy had moved multiple times, he did not think it was feasible to collect physical evidence from the homes where they had lived. He also did not seek a search warrant for Hallman's phone because he "had no reason to believe that there was evidence of a crime on his phone."
Hallman was reindicted with both Rita and Amy as complainants.
Theresa Fugate, a sexual assault nurse examiner (SANE) at Cook Children's Medical Center, testified that she conducted Rita's sexual assault examination on March 23, 2016, and Amy's sexual assault examination on February 17, 2017, and found no physical evidence in either exam. Fugate explained that for nonacute sexual assault (assault occurring 120 hours or more before the exam), there was not likely to be any DNA evidence and that physical injury to the female sexual organ was rare because it was an area meant to stretch. Fugate also testified about what Rita and Amy had told her about Hallman's alleged acts of sexual abuse.
Samantha Torrance, a forensic interviewer at Alliance for Children, Tarrant County's children's advocacy center, testified about how a forensic interview is conducted (nonleading and nonsuggestive questions in vocabulary adjusted to the child's level of development) and about the importance of sensory and peripheral details in a child's account of abuse. Torrance said that as compared to the first time and the last time, "all those other times in between ... blend together if it's something that happened pretty regularly or pretty commonly" and that little discrepancies would occur with each retelling while the major details of a recollection should stay consistent.
Torrance explained that sensory details describe what a child could feel, hear, or see during an incident while peripheral details were those surrounding the incident—where it happened, what else happened that day, and where other people were when it occurred.
Torrance conducted Rita's forensic interview on March 14, 2016, and Amy's forensic interview on February 13, 2017, and said that she had no concerns that either complainant had been coached. On cross-examination, she acknowledged that if Kim had taken advantage of the counseling available at Alliance for Children in the year or so between Rita's and Amy's interviews, she would have been educated on some of the dynamics of grooming, which could have made it more difficult for Torrance to recognize potential signs of coaching. Kim denied having received any training on how to recognize the signs of sexual abuse until after Rita's and Amy's outcries, even though one of her jobs was working in a day care.
At trial, Amy testified about having performed oral sex on Hallman. Yet, Amy acknowledged that during her sexual assault exam she had denied having performed oral sex on Hallman. Amy also acknowledged that she did not mention some of the other incidents, including the "butt plug" game, in her forensic interview.
Fort Worth Police Officer G. Garcia testified that he responded to a domestic disturbance around 3 p.m. on August 9, 2014, the day before the August 10 incident. The suspect that day was Kim, and the complainant was Hallman. Officer Garcia said that Kim did not mention any concerns to him regarding sexual abuse of anyone. He did not see any injuries, and no arrests were made.
Yolanda Sifuentes, who worked for the Tarrant County College South Campus as coordinator of special projects in the Family Empowerment Center, testified that she met with Hallman on March 8, 2016, at 10:52 a.m., and that Amy was with him. Hallman told her that Kim had been diagnosed with bipolar disorder and was abusive to Amy and that he had removed Amy from the situation, resulting in both of them being homeless. Sifuentes, who had been trained to look for signs of abuse, did not notice any injuries to Amy or any red flags during her conversation with Hallman.
The jury deliberated for around seven hours during the first day of deliberations and then for two hours the following day. It sent out thirteen notes during deliberations. Three requests were for timeline information, two were for office supplies, and some requested clarification on the law (which the trial court declined to answer by referring the jurors to the charge) or for portions of the record to which they were not entitled (the transcript of the prosecutor's closing argument). But the jury also asked for portions of Kim's testimony regarding where she slept at night and portions of Amy's testimony about when she was alone with Hallman while Rita was at band practice. The jury ultimately acquitted Hallman of the continuous-sexual-abuse count involving both Rita and Amy but found him guilty of the six remaining counts involving Amy.
E. Application
The State failed to comply with the Michael Morton Act's disclosure requirements until the second day of the punishment phase of Hallman's trial, and Hallman's conviction was entirely dependent on the jury's credibility determinations because there was no physical evidence to support the State's allegations. The jury acquitted Hallman of the most serious count—continuous sexual abuse of children under the age of 14—which was the only count involving both Amy and Rita.
Although the August 10 domestic violence incident was extraneous to the charged offenses, Kim said that she had mentioned the possibility of the sexual abuse of Amy by Hallman to the responding officers that day, but nothing in her written statement, which was not disclosed during guilt-innocence, indicated that she had actually done so. This gave Kim's written statement significant impeachment value when the responding officer testified that he had no recollection outside of his report. See Hampton , 86 S.W.3d at 613 (requiring reviewing court to explain why a particular Brady item is especially material in light of the entire body of evidence).
Credibility was the key to this case, and by failing to disclose Kim's written statement to the police—which, contrary to Kim's testimony during trial, did not mention her suspicions that Hallman had been sexually abusing anyone—before or during the guilt-innocence phase of trial, the State deprived Hallman of the opportunity to fully develop his defensive theory that Kim, Amy, and Rita were lying. This undisclosed evidence presented a reasonable probability that a total or substantial discount of Kim's testimony might have produced a different result during the guilt-innocence phase of trial. When weighed and considered against other inconsistencies in Kim's, Amy's, and Rita's testimonies and the lack of any physical evidence that Hallman had sexually abused Amy and Rita, we conclude that this evidence would have been sufficient to undermine confidence in the jury's verdict. See Wearry , 136 S. Ct. at 1006. Accordingly, we hold that the State violated Article 39.14's requirements when it failed to disclose Kim's written statement before the punishment phase of trial under the pre-Michael Morton Act definition of materiality.
The jury apparently determined that Rita was not credible because it did not find Hallman guilty of the only count involving her.
Neither Watkins nor Branum involved a battle of the sort that routinely occurs in a sex-related case: the "he-said, she-said" confrontation that requires impeachment evidence to facilitate the jury's determination of the witnesses' credibility. There was no question in Branum that the defendant was driving when she crashed into the deceased's vehicle and killed him, and in Watkins , the defendant had notice under Article 37.07 and pleaded true to the offenses listed in the indictment's enhancement paragraphs. In contrast to the undisclosed witness in Young , Kim was one of the State's principal witnesses in the sexual abuse case against Hallman.
The State argues that Hallman was able to impeach Kim's testimony through Detective Robles's testimony and the offense report, but Detective Robles testified that he had no independent recollection outside of the offense report, and Kim's handwritten statement directly contradicting her testimony at trial regarding whether she mentioned potential sexual abuse of Amy by Hallman—the central issue at trial—would have provided the jury with stronger evidence of her credibility or lack thereof.
The State's failure to timely disclose Hallman's written statement, on the other hand, was harmless because Hallman made that statement. See Havard v. State , 800 S.W.2d 195, 204 (Tex. Crim. App. 1989) ("[A]ppellant knew of both the existence and the content of his statement, as a matter of simple logic, because he was there when it was made."). And based on our resolution here, we need not reach whether the undisclosed family violence packet would also have made a difference. See Tex. R. App. P. 47.1.
In summary, no one disputes that the State failed to disclose Kim's statement before the second day of the trial's punishment phase ( Brady prong 1), and as set out above, it was favorable to Hallman for its impeachment value ( Brady prong 2), and it was material because of the reasonable probability that it might have tipped the balance and resulted in an acquittal of the remaining six counts involving Amy ( Brady prong 3). See Pena , 353 S.W.3d at 809. Under the circumstances presented here, we hold that the trial court abused its discretion by denying Hallman's motion for mistrial. Thus, we sustain Hallman's sole point.
IV. Conclusion
Having sustained Hallman's sole point, we reverse the trial court's judgment and remand this case for a new trial.