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Click here for the full text of this decision FACTS:A jailer at the Texas City Jail, Amanda Jones, ordered an inmate, Telly Wayne Fury, to go back into his cell. Fury picked Jones up and threw her into his cell, pinning her against the wall with one hand and choking her with the other. Jones began to feel lightheaded and had trouble breathing and so began pleading with Fury to let her go. Fury then began to move his hands over Jones’ body, and then finally released her. Another inmate, Stephen Rodriguez, witnessed the incident. He saw Fury grab Jones and force her into his cell. He saw Fury choking Jones, noting that Fury had “a good grip” so that Jones could hardly speak, and fondling her. Rodriguez heard Fury say, “I could kill you, bitch.” After the incident, Fury told Rodriguez, “I was going to rape that bitch.” Jones and Rodriguez testified at Fury’s trial for aggravated assault on a public servant. During cross-examination of Jones, Fury’s attorney asked whether Jones had had any injuries to photograph and Jones said no. Asked again about photographs, Jones said she and others had used the jail’s camera to photograph her injuries. During closing arguments, Fury’s attorney emphasized that there was no evidence of injury; that there were no photographs; and that since Jones said there were photographs, their absence from the state’s evidence indicated that they did not show any kind of injury. The jury found that appellee intentionally, knowingly or recklessly caused bodily injury to the complainant with his hand or arm, and that appellee, through the use of his hand or arm, used or exhibited a deadly weapon during the commission of the assault. Fury filed a timely motion for new trial arguing first, that the verdict was contrary to the law and evidence, and second, that evidence tending to show Fury’s innocence (i.e., the jailhouse photographs) were withheld by the state in violation of Brady v. Maryland, 373 U.S. 83 (1963). At a hearing on the motion, the state told the trial court that it had queried the jail and learned that there were 11 photographs it would now enter into evidence. Fury conceded that the photos showed Jones to be red all over, but speculated that the coloring could be from a printer malfunction. Fury also maintained that the photos were mitigating and that the jury should have been shown them. The state countered that the photos defeated Fury’s trial position that there was no photographic evidence that Jones was injured. The state noted that it was obligated only to prove that Fury used his hands in a manner capable of causing death or serious bodily injury. The trial court granted Fury’s motion for new trial. While noting that it did not believe that the state’s failure to produce and disclose the photographs was intentional or in bad faith, the trial court agreed that the effect of the photos on the jury was unknown. The state appeals. HOLDING:Vacated and remanded. The court first rejects the state’s contention that the trial court granted a new trial on a ground not pleaded by Fury. The court reminds the state that it does not consider the statements of the trial court that relate to its rationale for granting a new trial; it looks instead to the grounds pleaded by Fury to determine whether any of those grounds provide a basis for granting a new trial. The court adds that Fury’s motion for a new trial was timely and clearly requested a new trial based on legal and factual sufficiency, as well as on a perceived Brady violation. The court also observes that Fury’s motion can be read to argue that a new trial was necessary because of newly discovered evidence and because of a discovery-order violation. Looking at the alleged Brady violation, the court finds the trial court would have abused its discretion if it had granted the new trial on this basis. Once Jones admitted there were photographs taken of her injuries at the jail with the jail camera and that the jail should have the pictures, Fury should have requested a continuance or taken some other action to get and review the photographs. Instead, Fury waited until after the jury found him guilty and then, for the first time in his motion for new trial, complained to the trial court about the state’s tardy disclosure of the photographs’ existence. By waiting to raise this issue for the first time in his motion for new trial, Fury either waived any Brady error or failed to show that any Brady error prejudiced him. The court rules similarly on the newly discovered evidence ground. Fury should have asked for a continuation once Jones identified the existence of the evidence, and he did not show that the evidence was unknown to him or could not have been discovered and obtained through due diligence. The court adds that the photographs were consistent with Jones’ testimony and so were merely cumulative. The court notes that Fury does not cite any evidence contrary to the jury’s verdict. Considering the existing evidence, the court finds it both legally and factually sufficient to support Fury’s conviction. OPINION:Terry Jennings, J.; Nuchia, Jennings and Higley, JJ.

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