Opinion
NO. WR-91,276-01
07-22-2020
EX PARTE PATRICK NEAL HAWTHORNE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 011209-A IN THE 259TH DISTRICT COURT FROM JONES COUNTY
Per curiam. ORDER
Applicant was convicted of two counts of aggravated sexual assault of a child and sentenced to consecutive sentences of 7 years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. State v. Hawthorne, Nos. 11-16-00337-CR, 11-16-00359-CR (Dec. 31, 2018). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends that his conviction was the result of a Brady violation when the prosecutor failed to disclose an audiovisual recording of the complainant's initial statements to police. Applicant asserts that, in this recording, the victim made statements that were exculpatory and impeaching. To establish a claim under Brady, Applicant must demonstrate that: (1) the State failed to disclose evidence; (2) the withheld evidence is favorable to Applicant; and (3) the evidence is material. Ex parte Miles, 359 S.W.3d at 665. (citing Hampton v. State, 86 S.W.3d 603, 612 (Tex. Grim. App. 2002)). For purposes of a Brady claim, "the State" includes the prosecutor, other employees in the prosecutor's office, and members of law enforcement connected to the investigation and prosecution of the case. Ex parte Chaney, 563 S.W.3d 239, 266 (Tex. Crim. App. 2018). Favorable evidence includes exculpatory evidence and impeachment evidence. Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). Evidence is material if there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Ex parte Lalonde, 570 S.W.3d 716, 724 (Tex. Crim. App. 2019).
Determining whether particular evidence was "material" under Brady is a mixed question of law and fact. Ex parte Weinstein, 421 S.W.3d 656, 664 n.17 (Tex. Crim. App. 2014). Materiality is determined by examining the alleged error in the context of the entire record and the overall strength of the state's case. Id. (citing Harm v. State, 183 S.W.3d 403, 409 (Tex. Crim. App. 2006)). See also, e.g., United States v. Sipe, 388 F.3d 471, 479 (5th Cir. 2004) ("a Brady determination is inevitably a contextual inquiry, involving questions of both law and fact. . . . because the court must judge the effect of the evidence on the jury's verdict, the Brady decision can never be divorced from the narrative of the trial."); United States v. Severns, 559 F.3d 274, 278 (5th Cir. 2009) ("While we examine the Brady question de novo, 'we must proceed with deference to the factual findings underlying the district court's decision.'").
Applicant has alleged facts that, if true, might entitle him to relief. Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). The trial court shall order the State to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. It appears that Applicant is represented by counsel. If that is not the case, and Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX. CODE CRIM. PROC. art. 26.04. If new counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether the State failed to disclose favorable, material evidence to Applicant. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: July 22, 2020
Do not publish
Brady v. Maryland, 373 U.S. 83, 87 (1963).