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Court of Criminal Appeals of Texas.


NO. WR-61,055-02

Decided: February 07, 2018

WALKER, J., filed a concurring opinion in which Hervey, J., joined.


A majority of the Court finds that Applicant Linda Carty is not entitled to habeas corpus relief and denies her motion for remand. Because I agree with the Court's disposition of this case for the same reasons that Judge Richardson describes in his concurring opinion, I concur with the Court's decision but join Judge Richardson's concurring opinion for all but Part B. I write separately to emphasize the proper analysis of whether undisclosed evidence is material to support a Brady claim.

I - Materiality of Brady Claims

The United States Supreme Court, in Brady v. Maryland, “[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.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Thus, Brady is violated when three requirements are satisfied: (1) the State suppressed evidence; (2) the suppressed evidence is favorable to the defendant; and (3) the suppressed evidence is material.1 Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). “Favorable evidence is any evidence that, if disclosed and used effectively, may make a difference between conviction and acquittal and includes both exculpatory and impeachment evidence.” Id. at 408 (citing Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)); United States v. Bagley, 473 U.S. 667, 676 (1985). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682; see also Ex parte Adams, 768 S.W.2d 281, 291 (Tex. Crim. App. 1989) (adopting Bagley standard of materiality). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682.

In Kyles v. Whitley, the Supreme Court expanded on Bagley's standard and emphasized four aspects of materiality:

Four aspects of materiality under Bagley bear emphasis. Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). Bagley's touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government's evidentiary suppression “undermines confidence in the outcome of the trial.”

The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

Third, we note that, contrary to the assumption made by the Court of Appeals, once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review. Assuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” necessarily entails the conclusion that the suppression must have had “ ‘substantial and injurious effect of influence in determining the jury's verdict.’ ”

The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item.

Kyles v. Whitley, 514 U.S. 419, 434-36 (1995) (internal citations omitted). The fourth aspect of Bagley described by Kyles, that materiality is considered collectively, and not item by item, deserves greater attention than courts sometimes give it, and it is for this reason that I write separately today. As Judge Richardson's concurring opinion notes, the Supreme Court has reemphasized this fourth aspect of Bagley materiality. Ex parte Carty, No. WR-61,055-02, concurring slip op. of Richardson, J. at 54 n.40 (Tex. Crim. App. Feb. 7, 2018) (citing Cone v. Bell, 556 U.S. 449, 473-74 (2009) and Wearry v. Cain, 136 S.Ct. 1002, 1007 (2016)). Just last term, the Supreme Court decided Turner v. United States, where it found that “the cumulative effect of the withheld evidence” was insufficient to undermine confidence in the jury's verdict in that case. Turner v. United States, 137 S.Ct. 1885, 1895 (2017). Clearly, it is still good law that the materiality of withheld evidence must be considered cumulatively and not item by item.

Paradoxically, on the way to reaching the ultimate question of whether withheld evidence is cumulatively material, we necessarily must identify, describe, and consider each piece of withheld evidence individually. As the Supreme Court in Kyles noted, “[w]e evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately.” Kyles, 514 U.S. at 436 n.10. Consideration of each piece of withheld evidence individually also makes sense from a “cumulative” effect standpoint. If any one improperly withheld item is found to be material on its own, Brady would be violated based on that one item, and the case would be subject to reversal because confidence in the verdict would, therefore, be undermined. The cumulative effect of one material item, combined with any number of non-material items, is obviously material by virtue of the finding that one item was material. If no individual item is itself material, reviewing courts should then look at the cumulative effect of all of the improperly withheld items of evidence. Even when no item in isolation is material, the combined, cumulative effect of multiple items can, in the right case, cross the Bagley standard of materiality, that there would be a reasonable probability the result of the proceeding would have been different.

II - The Evidence is Not Material

Upon my own consideration of the entire, cumulative body of evidence in this case, I agree with the habeas court's conclusion as well as that of Judge Richardson in his concurring opinion that the undisclosed evidence is not material. While the statements by Robinson, the deal with Caston, and Anderson's written statement were all withheld and favorable to Applicant, individually they were not material. Cumulatively, if the defense was given the withheld evidence, there is not a reasonable probability that the result would have been different, and I am confident that Applicant still would have been convicted by the jury and Applicant still would have been sentenced to death. This is so because had the defense received all of the complained of undisclosed evidence, the only significant difference in the trial would be that defense counsel would have been able to further impeach Robinson by exposing inconsistencies in his statements. The additional disclosure of the deal with Caston and Anderson's written statement would have had little to no effect on the jury's deliberations for two reasons. First, defense counsel, with or without the Caston deal, could have cross-examined Caston and Josie Anderson about whether or not they had been charged by the State at the time of Applicant's trial, could have explored the existence of motive to testify against Applicant, and could have argued that fact to the jury. Second, defense counsel was already able to get the substance of Anderson's written statement before the jury when counsel got Robinson to admit that he told the police in his statement that Applicant did not enter the apartment.

Consequently, even if Applicant had been given all of the improperly undisclosed evidence, the most that could have been done was to convince the jury that much of the testimony of Robinson (and possibly even Caston and Josie Anderson) was not credible. Had counsel done so, and, for argument's sake, even convinced the jury that neither Robinson, Caston, nor Josie Anderson were credible at all, I believe Applicant still would have been found guilty and given the death penalty. There was overwhelming evidence of guilt showing that not only was Applicant connected to the crime,2 but that she was a key player in the kidnapping and murder.

Zebediah Comb testified that Applicant “had a job” for the group to do involving a drug deal. “[F]or the drug deal she wanted a favor in return,” which was for the group to “bring the lady to her” and Applicant was “going to handle it from there.” Comb also testified that, after the kidnapping, Applicant said “I got my baby.” Comb saw the victim in the trunk of Applicant's car. Applicant asked Comb to put the victim in another car parked in the yard, but he refused. Comb also testified that the group was angry at Applicant because there was no money or drugs in the victim's home. Comb told the group, including Applicant, to get in their cars and leave, but Applicant refused to drive her car with the victim in the trunk. He testified that when he woke the next morning, Robinson was there and Applicant arrived shortly thereafter driving a black Chevrolet with a baby in the car. He said that the victim's body was still in the trunk of Applicant's car, and Applicant talked about disposing of the body by burning it. Applicant left again and returned again two hours later with the baby. Comb further testified that he saw Robinson, Gerald “Baby G” Anderson, and Applicant put together packets of fake and real money to rip off a dope dealer before Applicant and Robinson left with the baby in the Chevrolet while Anderson and another man left in a different car. Robinson returned about three hours later with the baby, which he left in the Chevrolet with the air conditioner running.

Florencia Meyers testified that she saw Applicant sitting in Applicant's car, at the apartment complex, the day before the kidnapping. Meyers testified that Applicant said she was going to have a baby the next day. Sherry Bancroft testified that Applicant had a storage unit and that, four days before the kidnapping, Applicant told her that she was in labor and expecting a baby boy. Bancroft said that she saw Applicant again on May 15, when Applicant told her that the baby was at home with his father, and Applicant left with a baby blanket and two sets of baby clothes. Denise Tillman testified that she sold to Applicant a number of medical supplies four days before the kidnapping. Jose Corona, who was described as both Applicant's boyfriend and as her husband, testified that they lived together for two and a half years. During that time, Applicant had a pattern of telling him that she was pregnant, but she would never actually give birth to a child. She would not take him to any doctors' appointments, and she never actually appeared pregnant. Corona testified that he eventually left after becoming tired of Applicant's lies, and that, the day before the kidnapping, Applicant called him many times to tell him that she was going to have a baby boy the next day. She also called him on May 16 to tell him that the baby would arrive that day.

After questioning by police, Applicant led the police to the house on Van Zandt where the baby was. The baby was found alive in a car owned by Applicant's daughter. Inside the car was a live 0.38 caliber round, a receipt from the Hampton Inn, the medical supplies Applicant had recently purchased, and numerous baby items. The victim was found in the trunk of Applicant's rental car that was also parked at the house on Van Zandt.

Clearly, disclosure of the improperly withheld evidence in this case, even if it would have cast doubt on Robinson, Caston, or Josie Anderson, would not have cast doubt on the accuracy of such critical and inflammatory information. I am convinced that all of this evidence shows that Applicant not only had a fixation on getting the baby, but had been planning the offense for some time. In the mind of the jury, this evidence would substantially outweigh the impeachment value of the improperly withheld evidence.3

III - Conclusion

In conclusion, the materiality of improperly withheld evidence should be considered first individually and then cumulatively. If the disclosure of one piece of said evidence, individually, provides a reasonable probability that the result of the guilt-innocence or punishment phase of the proceeding would have been different, then the Bagley standard is met and Brady would be violated. If no individual piece of evidence reaches that standard, all of the improperly withheld pieces of evidence cumulated together could reach the Bagley standard. However, even if the withheld evidence had been disclosed to the defense, given the overwhelming and inflammatory evidence in this case, my confidence in the outcome–that Applicant was convicted and then sentenced to death–is not undermined. Accordingly, I concur in the result.


1.   If any one of these three is not met, for example, if the evidence is not favorable to the defendant, then there is no need to consider whether the evidence is material. At that point, there can be no Brady violation because one of the three requirements is missing.

2.   See Carty v. State, No. 74295, 2004 WL 3093229, at *4 (Tex. Crim. App. Apr. 7, 2004) (holding that there was sufficient non-accomplice evidence to tend to connect Applicant to the commission of the victim's kidnapping and murder).

3.   In many cases the analysis should be much more in depth and would have given a detailed analysis of exactly how an ably competent attorney would have used the undisclosed evidence and how such use would have affected the jury.

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