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Click here for the full text of this decision FACTS:The appellant was convicted of indecency with a child. The complainant was his wife’s daughter from a prior marriage. After being convicted and sentenced, he filed a timely motion for new trial. The text of the motion reads as follows: “The verdict in this cause is contrary to the law and the evidence. Evidence establishing the defendant’s innocence was withheld by a material prosecution witness. Defendant prays that the Court set aside the judgment of conviction entered in this cause and order a new trial on the merits.” The claim seems to be one of actual innocence. The appellant did not mention Brady v. Maryland, 373 U.S. 83 (1963). Along with the motion, the appellant submitted affidavits from the complainant and from Rhonda Taylor King, the complainant’s stepmother and the outcry witness at trial. In the complainant’s affidavit, she recanted her trial testimony and explained that she had made up the story so that she could live with her father for the summer. In Rhonda’s affidavit, she said that, before the trial, she had told the prosecutor that she did not believe the complainant’s allegation against the appellant. She also said that the prosecutor told her that he probably would not put Rhonda on the stand as a result. But, the record shows that Rhonda did testify during the trial. The trial court held a hearing on the motion for new trial. During the hearing, Rhonda testified. She said that she had never believed the complainant’s allegation that the appellant had committed the offense. She repeated her claim that, before the trial, she had told the prosecutor that she did not think that the appellant had committed the offense. She explained that she did not believe the complainant, because the complainant repeatedly claimed and then denied that the offense happened. The complainant’s father, Travis King, also testified that he had told the prosecutor that he did not believe the complainant’s allegation. The appellant’s trial attorney testified that the prosecutor never told her that Rhonda and Travis had said that they did not believe the complainant. The complainant’s testimony was consistent with her affidavit recanting her trial testimony. The complainant’s mother testified that she had never believed the complainant. A sheriff’s office investigator and a Texas Department of Protective and Regulatory Services investigator also testified about their meeting with the complainant after she recanted her trial testimony. After the hearing on the motion, the state and the appellant submitted cases that they believed were relevant to the trial court’s decision on the motion. Attached to the appellant’s letter to the trial court were copies of three opinions that dealt with witness recantations and the effect of the state’s knowledge of perjured testimony on a claim of new evidence of innocence. The state submitted a letter directing the trial court’s attention to several cases, all of which dealt with the credibility of recanting or newly discovered witnesses. None of the cases submitted by the appellant or the state dealt with Brady claims. The trial court denied the motion without mentioning a Brady claim. The trial court issued a written order explaining its reasons for denying the motion. “I have finally had a chance to review your submissions of case authority in connection with this motion for new trial. I don’t find the testimony that recants the trial testimony to be credible. To do so would require me to believe that this young child made up her testimony because her (younger!!!) sister told her she would have to make something up about the [appellant] so she could get to go and spend the summer with her dad, when she did not previously know her dad was coming and when she had not seen him in two years.” On direct appeal, the appellant complained that the trial court erred in failing to grant the motion for new trial because of 1. a Brady violation and 2. the complainant’s recantation. The court of appeals reversed, holding that the trial court abused its discretion in denying the motion for new trial, because the complainant made a credible recantation. On discretionary review, this court reversed and remanded to the court of appeals to consider the appellant’s other point of error. On remand, the court of appeals, in a split decision, held that the state withheld favorable and material information in violation of Brady. As a result, the court of appeals reversed the conviction a second time. The state filed a motion for rehearing, which was denied. On the state’s petition for discretionary review, the court of appeals withdrew its prior opinion and issued a new opinion, holding that the appellant either preserved or did not need to preserve his Brady claim for appeal and that the state violated Brady. HOLDING:The court reverses the judgment of the court of appeals and affirms the trial court’s judgment. Gallups v. State, 151 S.W.3d 196 (Tex. Crim. App. 2004), is distinguishable from the present case, because both the factual and legal issues were intertwined and related. In this case, the factual issues may have been intertwined, but the legal issues were not. The record supports the conclusion that neither the state nor the trial court understood that the appellant was raising a Brady claim. The prosecutor to whom Rhonda and Travis allegedly spoke to about the complainant’s lying was present in the court room and cross-examined the witnesses. He did not admit, deny, or explain the allegation during the hearing on the motion for new trial, even though another prosecutor was present. Had the prosecutor been aware that the appellant was making a Brady claim, he could have testified about it. Also, the trial court’s order denying the motion does not mention Brady. All of these facts indicate that the appellant did not raise a separate claim related to Brady. As a result, the appellant did not preserve for appellate review his complaint that the trial court erred in failing to grant his motion for new trial on the basis of a Brady violation, the court concludes. OPINION:Price, J., delivered the opinion of the court, in which Keller, P.J., and Womack, Keasler, Hervey, and Cochran, JJ., joined. Meyers, J., did not participate. Keller, P.J., filed a concurring opinion, in which Cochran, J., joined. Holcomb, J., filed a dissenting opinion, in which Johnson, J., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion joined by Cochran, J. “I join the Court’s opinion but write separately to respond to some of the comments in the dissenting opinion. The dissent claims that a”first-year law student’ would recognize that a Brady claim is presented by the statement,”Evidence establishing the defendant’s innocence was withheld by a material prosecution witness.’ But Brady claims apply only to agents of the government, and the complaining witness in this case was not a government agent. That distinction is the essence of the difference between suppression-of-exculpatory-evidence claims under Brady v. Maryland and freestanding actual innocence claims due to the malfeasance of a witness under Ex parte Elizondo.” DISSENT:Holcomb, J., filed a dissenting opinion, in which Johnson, J., joined. “[B]ecause in my view, the State withheld material impeachment and exculpatory evidence, I would hold that the jury’s verdict is not worthy of confidence. See Kyles v. Whitley, 514 U.S. at 434; Bagley, 473 U.S. at 682; Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App. 1997). Because the trial court had clear notice that a Brady claim was being litigated, and the record evidence clearly supports the court of appeals’ conclusion that material Brady evidence was withheld, I dissent.

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