# Demetrie Trevail Dixon v. State

> Texas Court of Appeals, 1st District (Houston) · June 28, 2012

URL: https://www.frixlaw.com/law-library/cases/3123058

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** June 28, 2012
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3123058

## How later opinions describe it (automated extraction)

- stating that qualifications of expert witness are “distinct from reliability and relevance and, therefore, should be evaluated independently”
- holding that when undisclosed evidence is merely cumulative of other evidence, no Brady violation occurs

## Opinion text

Opinion issued June 28, 2012.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00442-CR
NO. 01-11-00443-CR
———————————
DEMETRIE TREVAIL DIXON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case Nos. 1265635 and 1265636

MEMORANDUM OPINION

A jury convicted Demetrie Trevail Dixon of two counts of sexual assault and

assessed punishment at six years’ confinement for each count, with the sentences
to run concurrently.1 In three issues on appeal, Dixon contends that the trial court

erred during the guilt phase of trial by (1) admitting scientific testimony that was

not reliable or proffered by a qualified expert, (2) admitting “victim character”

evidence, and (3) denying his motion for new trial based on the State’s violation of

his due process rights in failing to disclose favorable evidence.

Background

The north-central area of Houston is the Houston Police Department’s

largest patrol area and is “known to have a high concentration of prostitution

activity[.]” Dixon worked as a patrol officer during the night shift in the north-

central area; specifically, he patrolled an area that included Antoine Street, West

34th Street, Mangum Street, and Dacoma Street in a marked patrol car between the

hours of 11:00 p.m. and 7:00 a.m. As a patrol officer, Dixon’s ordinary job

responsibilities included answering service calls and maintaining a visible police

presence. His ordinary job responsibilities did not include investigation of

prostitution or participation in other vice activities.

Captain V. Rodriguez, a twenty-six-year veteran of the HPD, commands

patrol of the north-central area. In the spring of 2010, another officer complained

to Rodriguez about ongoing police misconduct towards women in the north central

area. Rodriguez conducted a preliminary investigation and identified Dixon as a

1
See TEX. PENAL CODE ANN. § 22.011 (West 2011).
2
suspect. Rodriguez referred the matter to HPD’s internal affairs division, and that

division—led by Sergeant D.M. Chambers—began an investigation. By canvasing

Dixon’s patrol area for information, Chambers learned of a potential sexual assault

victim—a prostitute who went by the name of “Fifi.” Chambers eventually located

“Fifi” in a county jail facility. When he asked her if she knew of any police

misconduct, she started to cry. “Fifi,” hereinafter the “complainant,” told the

officers that she had been sexually assaulted by an on-duty patrol officer twice—

once on March 15, 2010 and again on April 25, 2010. She stated that the sexual

assaults took place in the early morning hours near industrial warehouses in the

north-central area. In a photo array, she identified Dixon as her assailant.

Chambers verified that Dixon was on duty on March 15th and April 25th.

Like all other HPD patrol cars, Dixon’s patrol car included mobile data terminal

(MDT) and automatic vehicle locator (AVL) technology. The MDT is a computer

by which officers make reports, acquire information, and communicate. The AVL

is “basically a GPS device that tracks the [patrol] vehicles.” Chambers requested

the data generated by both systems for Dixon’s patrol car. He also conducted

undercover surveillance of Dixon on patrol. During that surveillance, the internal

affairs team observed Dixon park his patrol car, turn off the patrol car lights, and

get out of the patrol car in a dark industrial warehouse area like the one described

3
by the complainant. Finding Dixon’s behavior suspicious, Chambers and the

internal affairs division intervened and brought Dixon in for questioning.

A grand jury indicted Dixon on two counts of sexual assault—one count for

the March 15th incident and one count for the April 25th incident—and the case

proceeded to trial. During the guilt phase of the trial, the complainant described her

history of drug addiction and prostitution. She testified that she withdrew from

high school and began smoking marijuana and drinking at a young age. When her

parents divorced, she stayed with her father. From him, she learned to smoke crack

cocaine at the age of fourteen or fifteen, and she sometimes purchased the drugs

they smoked together. Her father’s friends introduced her to the “dope dealers.” On

one drug run, her father’s friends abandoned her in the area where they bought

drugs. Having no way to contact her father or to get home, the complainant stayed

in that area by herself for four to five months. She slept in various homes and

motel rooms, and she used crack cocaine daily. The complainant began working as

a prostitute at the age of fifteen to finance her drug habit.

The complainant also testified about the events giving rise to the charges

against Dixon. Around the time of the sexual assaults, she worked as a prostitute in

the north-central area of town. She used drugs four to five times per day. She

always took her customers to hotels as a safety precaution; she never agreed to

perform sexual acts in her customers’ cars. The locations from which she solicited

4
customers included a Texaco gas station on 34th Street and Antoine Street. The

complainant admitted that she engaged in illegal activity by abusing drugs and

performing sexual acts for a fee and that she had been arrested on multiple

occasions—although never by Dixon. She described her relationship with the

patrol officers in the area as friendly, and due to her numerous encounters with

police, she was familiar with arrest procedures.

On March 15th—the date of the first sexual assault—the complainant was

staying at a friend’s apartment off 34th Street. Around 5:00 a.m., she left the

apartment with another friend. They stopped at a Jack-in-the-Box for breakfast,

and were some of the restaurant’s first customers when it opened at 6:00 a.m. The

complainant’s plan for the remainder of the day was to “eat, clean up, take [the

friend with whom she stayed] something to eat, get high and go to work.” When

she left the Jack-in-the-Box, she began walking down 34th Street toward the

apartment. A uniformed police officer in a marked patrol car stopped her near the

Circle P convenience store located between the Jack-in-the-Box and the apartment.

At the time, she did not have any crack cocaine on her person, and she was not

soliciting customers or engaged in other illegal activity. The officer asked if she

had ever been arrested and instructed her to tell her friend to go home. The officer

then exited the patrol car, grabbed her by the arm, and told her to get into the car.

5
When he did not “pat her down” before putting her in the patrol car, she “knew

something wasn’t right.”

The officer drove behind the Circle P store and parked the patrol car

between the warehouses located nearby. It was still dark outside. The officer asked

for and ran the complainant’s name on his computer. He turned the patrol car lights

off, got out of the patrol car, and approached the back door. He instructed the

complainant to get out the car so that he could search her. When she requested that

a female officer perform the search, the officer instructed her to take all of her

clothing off. She complied. He then sexually assaulted her.

With respect to the sexual assault on April 25th, the complainant testified

that she was working from a bus stop outside the Texaco gas station on 34th Street

and Antoine Street when a uniformed police officer parked his patrol car in the

parking lot behind the bus stop. She immediately recognized the officer as the man

who assaulted her on March 15th. Because it was in the early morning hours, it

was dark outside and there was no traffic. The officer asked the complainant if she

was “ready to get this over with or go to jail[.]” Because he was in uniform, the

complainant did not feel free to ignore him or run. The officer again grabbed her

arm and placed her in the back of the patrol car. He did not notify dispatch that he

had a female passenger in the car or ask for a female officer to join him at the

scene. Again, the officer drove her to an industrial warehouse area; this time, he

6
parked his patrol car in front of an abandoned school bus. The officer removed the

complainant from the patrol car and sexually assaulted her for the second time. The

officer then drove the complainant back to the Texaco station.

The complainant identified Dixon as her assailant in court. The complainant

denied that she had consented to any of the sex acts forced upon her by Dixon. She

informed the jury that she had not received anything from the prosecution in

exchange for her testimony.

To corroborate the complainant’s story, the State presented the testimony of

several law enforcement officials. The jury heard testimony from both Rodriguez

and Chambers regarding ordinary police procedures. They informed the jury that

patrol officers should not detain a person without probable cause or transport a

person to a different location before performing a weapons search or running a

name check for outstanding warrants. A male officer should not perform a pat-

down or contraband search of a female suspect, and strip searches are never

performed in public. Special procedures apply when a male officer transports a

female passenger—the officer should inform dispatch that he has a female

passenger, that he is leaving a specific location, and that he is traveling to a

specific location. Dispatch then tracks the time at which the officer departs and

arrives with the female passenger. According to the complainant’s testimony,

Dixon did not follow any of these procedures.

7
The State also presented the testimony of G. Jordan, a chief fraud examiner

with the Harris County District Attorney’s public integrity division. Jordan

analyzed the MDT records from Dixon’s patrol vehicle by searching for entries

using the complainant’s name. His search revealed that, at 6:07 a.m. on March

15th, Dixon conducted a “person check” from his patrol car using the

complainant’s name.

Sergeant R. Cruz, another internal affairs officer, also testified regarding the

investigation of Dixon’s crimes. Over Dixon’s objection, Cruz testified that he

collected and reviewed the AVL data from Dixon’s patrol car to determine Dixon’s

location on the dates and times of the sexual assaults. Specifically, Cruz converted

the physical addresses provided by the complainant into latitude and longitude

coordinates. Searching within a 200-foot radius of the coordinates, he generated a

list of the patrol cars that traveled through the areas around the time the sexual

assaults occurred. Because this list included Dixon, Cruz retrieved the AVL data

specific to Dixon’s patrol car. The AVL data provided dates, times, unit

information, longitude and latitude coordinates, directional information, and

velocity. Cruz plotted the data for March 15th, between the hours of 5:58:26 a.m.

to 6:30:45 a.m., and April 25th, between the hours of 1:46:17 a.m. to 2:16:15 a.m,

on a map. Using the map, he gave testimony regarding the routes traveled by

Dixon on the dates of the sexual assaults. He concluded that, consistent with the

8
complainant’s story, Dixon parked his patrol vehicle in an industrial warehouse

area near the Circle P on 34th Street for twenty-eight minutes on the morning of

March 15th and near an abandoned school bus for twelve minutes on the morning

of April 25th.

Cruz further stated, without objection, that he personally visited the two

locations where the complainant alleged the sexual assaults occurred. He found the

condition of the areas to be consistent with the complainant’s description. He

described the industrial warehouse area behind the Circle P as being dimly-lit and

not visible to passing traffic. Regarding the industrial warehouse area near the

abandoned school bus, Cruz testified that a vehicle parked in front of the school

bus would not be visible to passing traffic.

After considering the evidence presented by the State and the arguments of

counsel, the jury found Dixon guilty on both counts of sexual assault and assessed

his punishment at six years’ confinement. This appeal followed.

Admission of Evidence

I. Scientific Evidence

In his first issue, Dixon contends that the trial court erroneously admitted

scientific evidence, specifically the AVL data showing the location of Dixon’s

patrol vehicle on the date and time the complainant was sexually assaulted. Dixon

argues, first, that the AVL data was unreliable in assisting the jury to determine a

9
fact in issue—namely, whether Dixon was at the place where the complainant was

sexually assaulted for a length of time sufficient to commit the offense—and

second, that Cruz was not qualified to give the testimony.

Whether to admit scientific evidence is a decision within the trial court’s

discretion. See Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009);

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Such decisions

will rarely be disturbed by an appellate court. Vela v. State, 209 S.W.3d 128, 136

(Tex. Crim. App. 2006); Rodgers v. State, 205 S.W.3d 525, 527−28 n.9 (Tex.

Crim. App. 2006). As with other types of evidentiary rulings, we will uphold the

trial court’s decision unless it lies outside the zone of reasonable disagreement.

Layton, 280 S.W.3d at 240. If the record supports the trial court’s decision on the

admission of evidence, there is no abuse of discretion. Osbourn v. State, 92 S.W.3d

531, 537 (Tex. Crim. App. 2002).

A. Reliability

To preserve an argument that the AVL data was unreliable, the record must

show that the party made a specific objection on the record and received an

adverse ruling on that objection. See TEX. R. APP. P. 33.1(a); Turner v. State, 805

S.W.2d 423, 431 (Tex. Crim. App. 1991). To make a specific objection, a party

must “let the trial judge know what he wants, why he thinks himself entitled to it,

and . . . do so clearly enough for the judge to understand him at a time when the

10
trial court is in a proper position to do something about it.” Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992). Notwithstanding a party’s failure to

make a specific objection, error will be preserved if a specific objection was

apparent from the context. See TEX. R. APP. P. 33.1(a)(1)(A); see also TEX. R.

EVID. 103(a)(1).

A party may challenge expert testimony on at least three specific grounds:

(1) the witness does not qualify as an expert because the witness lacks the requisite

knowledge, skills, experience, training, or education in the subject matter of the

testimony; (2) the subject matter of the testimony is inappropriate because it is

unreliable; or (3) the testimony will not assist the factfinder in deciding the case.

See Vela, 209 S.W.3d at 131, 133−34; Kelly v. State, 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992); see also TEX. R. EVID. 401, 702, 705(c). Respectively, these

criteria are commonly referred to as “qualification,” “reliability,” and “relevance.”

Vela, 209 S.W.3d at 131. They raise distinct inquiries, and an objection based on

one of the criteria does not preserve error as to another. See id. (stating that

qualifications of expert witness are “distinct from reliability and relevance and,

therefore, should be evaluated independently”); Turner v. State, 252 S.W.3d 571,

584 n.5 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (holding that objection

based on expert’s qualifications did not preserve reliability issue).

11
Here, in anticipation of Cruz’s testimony about the AVL data, Dixon

requested leave to voir dire Cruz on the ground that he lacked “the background

necessary to qualify him as an expert on that scientific testimony[.]” During voir

dire, Dixon inquired primarily about Cruz’s qualifications—asking whether Cruz

had a “college degree in anything scientific” or had attended classes regarding the

collection or analysis of AVL data; whether he understood the “computer or the

algorithms or any of the mathematic bases” for the AVL data or had spoken with

the AVL programmers about how that data is collected; and whether he understood

the rate of error in the data collected. Although Dixon asked whether Cruz had

“any idea about the scientific reliability in terms of reviewing studies for how

accurate [the AVL system’s] latitude and longitude findings are,” that question

sought information about whether Cruz had the requisite knowledge to give an

opinion on the AVL data rather than the reliability of the data itself. At the end of

voir dire, Dixon made this objection:

[W]e would lodge a 702 objection that this witness is not qualified to
offer and have admitted the evidence of the AVL because he has no
understanding and reliance of accuracy. The 702 predicate, while not
exhaustive, is clearly clear that there ha[s] to be some sort of
foundation for his reliance on the evidence that he’s putting forth
before the jury.[2]

2
Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
12
He then referred the trial court to a number of cases addressing the qualification of

expert witnesses before reasserting his position that Cruz was “not an expert.”3

Nowhere in the record do we find an objection that Cruz’s testimony on the

AVL data should be excluded because the data he sought to introduce was

unreliable. Dixon renewed his voir dire objection when Cruz testified before the

jury, and the context provided by the voir dire does not suggest that Dixon objected

to reliability of the data as well as to Cruz’s qualifications to offer an opinion

interpreting the AVL data. Absent such an objection, any question about the

reliability of the AVL data is not preserved for our review. See TEX. R. APP. P.

33.1; Turner, 252 S.W.3d at 584 n.5.

experience, training, or education may testify thereto in the form of
an opinion or otherwise.

TEX. R. EVID. 702.
3
Specifically, Dixon sought to highlight Cruz’s lack of qualification by comparing
his knowledge and experience to a civil engineer who explained how a GPS-based
system worked in McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138
S.W.3d 24 (Tex. App—San Antonio 2004, no pet.); a police officer who had a
college in degree in geography and could explain GPS technology in Brown v.
State, 163 S.W.3d 818 (Tex. App.—Dallas 2005, pet. ref’d); a police officer
having more than sixty hours of training who testified about blood-spatter and
blood-stain evidence in Wilson v. State, 195 S.W.3d 193 (Tex. App.—San Antonio
2006, no pet.); and a police officer holding a certification in horizontal gaze
nystagmus testing in Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).
Dixon did not make any assertion in the trial court that these cases were persuasive
on the issue of the reliability of the AVL data.

13
B. Qualifications

Dixon next contends that Cruz lacked the knowledge, education, and

training to qualify him as an expert on the interpretation of AVL data. Dixon points

out that, according to Cruz’s own testimony, he had only two hours of formal

training on the AVL system; he did not have a college degree in any scientific

field; he did not understand the science underlying the AVL system or know the

system’s rate of error; and other than the system manual, he had not read any

literature on the subject. The State responds that Cruz “was a fact witness, not an

expert witness. His testimony was not based on any technical or specialized

knowledge of the inner-workings of the [AVL] system”; instead, he testified

“based on his role in the investigation . . . and as the custodian of the AVL

records.” For our analysis here, we assume expert testimony was required to assist

the jury in understanding the AVL data.

“Qualification is a two-step inquiry. A witness must first have a sufficient

background in a particular field, and a trial judge must then determine whether that

background goes to the matter on which the witness is to give an opinion.” Davis v.

State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010). There is no rigid formula for

determining whether an expert is qualified to testify. “Because the spectrum of

education, skill, and training is so wide, a trial court has great discretion in

determining whether a witness possesses appropriate qualifications as an expert on

14
a specific topic in a particular case.” Id. The focus is on the “fit” between the

subject matter of the testimony and the expert’s familiarity with that subject matter.

Vela, 209 S.W.3d at 133.

To give appellate courts some guidance in determining whether a trial court

abused its discretion in ruling on an expert’s qualifications, the Court of Criminal

Appeals has set forth three criteria: (1) “[I]s the field of expertise complex?”; (2)

“[H]ow conclusive is the expert’s opinion?”; and (3) “[H]ow central is the area of

expertise to the resolution of the lawsuit?” Rodgers v. State, 205 S.W.3d 525, 528

(Tex. Crim. App. 2006). The Court explained these criteria:

First, is the field of expertise complex? The degree of education,
training, or experience that a witness should have before he can
qualify as an expert is directly related to the complexity of the field
about which he proposes to testify. If the expert evidence is close to
the jury’s common understanding, the witness’s qualifications are less
important than when the evidence is well outside the jury’s own
experience. For example, DNA profiling is scientifically complex;
latent-print comparison (whether of fingerprints, tires, or shoes) is not.
Second, how conclusive is the expert’s opinion? The more conclusive
the expert’s opinion, the more important is his degree of expertise.
Testimony that “a given profile occurred one time in 2.578 sextillion
(2.578 followed by 21 zeroes), a number larger than the number of
known stars in the universe (estimated at one sextillion)” requires a
much higher degree of scientific expertise than testimony “that the
defendant’s tennis shoe could have made the bloody shoe print found
on a piece of paper in the victim’s apartment.” And third, how central
is the area of expertise to the resolution of the lawsuit? The more
dispositive it is of the disputed issues, the more important the expert’s
qualifications are. If DNA is the only thing tying the defendant to the
crime, the reliability of the expertise and the witness’s qualifications
to give his opinion are more crucial than if eyewitnesses and a
confession also connect the defendant to the crime.
15
Id.; see Davis, 313 S.W.3d at 350.

Following Rodgers, we first consider the complexity of the field of expertise

serving as the basis for Cruz’s testimony. Cruz explained that the AVL system is

GPS-based. Through satellite transmission, devices installed in patrol cars send

latitude and longitude coordinates to a computer maintained by HPD. The AVL

data interpreted by Cruz consisted of computer-generated spreadsheets, listing the

date and time, the patrol car “unit information,” its latitude and longitude

coordinates, its “GPS azimuth” (meaning direction), and its velocity. Although the

science underlying the compilation of this data is technically complex, the process

by which Cruz interpreted the data was not. As part of the internal affairs

investigation, Cruz converted the physical addresses provided by the complainant

into latitude and longitude coordinates. Using the dates and times of the

complainant’s sexual assault, Cruz retrieved the AVL data within a 200 foot radius

of those coordinates in order to “pick up” the patrol cars that traveled through the

area. Because the search “picked up” Dixon, Cruz then retrieved the AVL data

specific to Dixon’s patrol car and plotted its longitude and latitude coordinates on

the dates and times of the sexual assaults on a map. Cruz also informed the jury of

the periods of time during which the AVL system reported Dixon’s patrol car as

having a zero velocity, and he opined that, during those periods, Dixon’s patrol car

was parked. Cruz’s analysis was thus straightforward, relatively simple, and likely
16
not far from the jurors’ common understanding of GPS-based technology.

Consequently, the required degree of education, training, and experience was not

high. See Rodgers, 205 S.W.3d at 528.

Dixon did not challenge the business records that recorded Dixon’s AVL

data. A person may lack expertise in how a piece of equipment operates but be

qualified to interpret the data the equipment collects (i.e., like a cardiologist who

interprets an EKG). Cruz’s qualifications—more than sixteen years’ experience as

a police officer, a two-hour course on the use of the AVL system, a full reading of

the system manual, and his daily performance and use of AVL data analysis as a

member of HPD’s internal affairs division conducting surveillance of police

officers—sufficed to render his testimony helpful to the jury in understanding the

evidence. See TEX. R. EVID. 702; see also Kelly, 824 S.W.2d at 572.

With respect to Rodgers’s second and third prongs, we conclude that Cruz’s

testimony was neither conclusive nor dispositive. Cruz’s testimony established that

Dixon’s patrol vehicle was in the locations described by the complainant on the

dates and at the times she said the sexual assaults occurred. While this evidence

connects Dixon to the complainant, it does not, by itself, conclusively connect

Dixon to the sexual assaults. Cruz did not mislead the jury that his analysis was

beyond a risk of error. On cross-examination, he acknowledged that he determined

the location of Dixon’s patrol car based exclusively on computer-generated data,

17
that he did not know rate of error for the data, and that, if the system generated bad

data, his analysis might also be bad. Moreover, the jury heard other evidence

corroborating the complainant’s testimony, including unobjected-to testimony that

Dixon was on duty on March 15th and April 25th, that he conducted a “person

check” using the complainant’s name on March 15th, and that Cruz personally

observed the locations where the sexual assaults occurred and found they fit the

complainant’s description. The jury also witnessed the complainant’s in-court

identification of Dixon as her assailant and heard her detailed testimony regarding

the sexual assaults.

After considering the Rodgers criteria on these facts, we conclude that the

trial court’s decision to admit Cruz’s testimony was within the zone of reasonable

disagreement. See Bryant v. State, 340 S.W.3d 1, 7 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d) (observing that trial court’s determination of witness

qualifications is given great deference). We overrule Dixon’s first issue.

II. “Victim Character” Evidence

During opening statements, the State told the jurors what they would learn

about the complainant during the guilt phase of trial:

[P]robably one of the worst points of her life as a child is when her
father taught her how to smoke crack cocaine. You’re going to hear
how [the complainant] became the person who was handed money
from her father, who’s sent with a friend of her father who had a car
into the Third Ward in Houston to purchase crack cocaine.

18
Dixon objected to the relevance of the State’s remarks, and the trial court overruled

the objection. Later, after eliciting testimony from the complainant that she began

using crack cocaine at a young age, the State asked her “[w]ho would obtain the

crack?” Dixon made a second objection to relevance. After the trial court overruled

the objection, the complainant answered that she purchased the drug for her father.

In his third issue, Dixon argues that the trial court erroneously overruled his

relevance objections because the complainant’s testimony did not have a tendency

to make a fact of consequence more or less likely but, instead, “placed a horrible

image in the minds of the jurors [of] a little girl being taught to smoke crack by her

father, a little girl who is then left in a crack neighborhood to become a prostitute.”

Regardless of whether the trial court erred by allowing the complainant to

testify that she purchased crack cocaine as a child, that testimony is cumulative of

other efforts made by the State to portray the complainant as a victim. “Overruling

an objection to evidence will not result in reversal when other such evidence was

received without objection, either before or after the complained-of ruling.”

Johnson v. State, No. 01-10-00314-CR, 2011 WL 1753209, at *2 (Tex. App.—

Houston [1st Dist.] May 5, 2011, pet. ref’d) (citing Leday v. State, 983 S.W.2d

713, 718 (Tex. Crim. App. 1998)). Before Dixon objected to relevance, the

complainant had already testified that she learned to smoke crack cocaine while

living with her father at the age of fourteen or fifteen and that she and her father
19
used the drug together. And, after the trial court overruled Dixon’s objection, the

complainant testified without further objection that her father’s friends introduced

her to “dope dealers” and eventually abandoned her in the area where they bought

drugs. Having no way to contact her father or to get home, the complainant stayed

in that area by herself for four to five months; according to her, she “just kind of

got stuck . . . and it was, like, a cycle[.]” She slept in various homes and motel

rooms, where she used crack cocaine daily. To finance her drug habit, the

complainant began working as a prostitute at the age of fifteen. Thus, any error in

the admission of the complainant’s testimony that she purchased drugs for her

father was harmless because the record contains other evidence of her history of

drug abuse and prostitution as a child. See Leday, 983 S.W.2d at 718; Johnson,

2011 WL 1753209, at *2.

We hold that Dixon has not shown reversible error in the admission of the

evidence at trial, and we overrule his third issue.

Brady Violation

In his second issue, Dixon contends the State withheld exculpatory

information in violation of his due process rights and Brady v. Maryland, 373 U.S.

83, 87, 83 S. Ct. 1194, 1196−97 (1963). Specifically, he maintains that the State

was obligated to disclose the opinion of an expert whose testimony in an unrelated

case contradicted Cruz’s testimony regarding the reliability and accuracy of the

20
AVL data as a means of tracking patrol car movement. Dixon raised this issue in

his motion for new trial, which was overruled by operation of law. We review the

trial court’s ruling on the motion for new trial for abuse of discretion, and we must

uphold the trial court’s ruling if that ruling was within the zone of reasonable

disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). The

trial court abused its discretion in denying the motion for new trial only if no

reasonable view of the record could support the denial of relief. See Charles v.

State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

The State complains that Dixon has not complied with the rules governing

the presentment of a new trial motion and the consideration of evidence outside the

record of a trial. Dixon replies that the clerk’s record could be supplemented to

include a docket sheet entry establishing presentment of his motion and an

agreement between the parties that the trial court would decide whether to grant a

new trial based on the parties’ written submissions and without a hearing. We also

note that Dixon has not provided us with any authority on whether Brady requires

the State to disclose expert testimony given in another, unrelated case that could be

used for impeachment. Even assuming the clerk’s record could be supplemented to

include the documents alleged by Dixon and that Brady applies, Dixon has not

established a violation of his rights.

21
In Brady, the United States Supreme Court held that the suppression of

evidence favorable to a defendant violates his due process rights if the evidence is

material either to guilt or punishment, without regard to the good or bad faith of

the prosecution. Brady, 373 U.S. at 87, 83 S. Ct. at 1196−97; see Wyatt v. State, 23

S.W.3d 18, 27 (Tex. Crim. App. 2000). To establish a Brady violation, Dixon must

show: (1) the State suppressed evidence; (2) the suppressed evidence is favorable

to him; and (3) the suppressed evidence is material. Hampton v. State, 86 S.W.3d

603, 612 (Tex. Crim. App. 2002).

Materiality, incorporated into Brady’s third prong, is a requirement that

Dixon must be prejudiced by the State’s failure to disclose the favorable evidence.

Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 1272 (2004). “The mere

possibility that an item of undisclosed information might have helped the defense,

or might have affected the outcome of the trial, does not establish ‘materiality’ in

the constitutional sense” contemplated by Brady. Hampton, 86 S.W.3d at 612

(quoting United States v. Agurs, 427 U.S. 97, 109−10, 96 S. Ct. 2392, 2400

(1976)). Evidence is not material if it is of such a nature that the defendant could

“obtain comparable evidence by other reasonably available means.” California v.

Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534 (1984). Instead, “evidence 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. A

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‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383

(1985); see Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992);

Lempar v. State, 191 S.W.3d 230, 241 (Tex. App.—San Antonio 2005, pet. ref’d)

(citing Ex Parte Richardson, 70 S.W.3d 865, 870 n.22 (Tex. Crim. App. 2002)).

Given this standard, the materiality of Brady evidence thus “depends almost

entirely on the value of the evidence relative to the other evidence mustered by the

State.” Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990); see also Allridge v. Scott,

41 F.3d 213, 218 (5th Cir. 1994) (holding that when undisclosed evidence is

merely cumulative of other evidence, no Brady violation occurs).

These conditions of materiality are not met in this case. The outside expert

testimony on which Dixon relies provides that the AVL system does not record

every patrol car movement; instead it only provides snapshots (i.e., intermittent

transmissions of latitude and longitude coordinates that are then plotted by a

technician who draws conclusions about what happened between the snapshots).

He further testified that the satellite transmissions are subject to interference from

weather and man-made obstacles such as buildings or tunnels, and that there is no

report on the accuracy of the system as means of tracking patrol car movement.

But the snapshots indicating the lack of movement in Dixon’s patrol car were the

focus of Cruz’s testimony, not the specific routes of travel. Dixon’s counsel cross-

23
examined Cruz at trial regarding the reliability of the AVL data as a means of

tracking patrol car movement. Additionally, Dixon could have—but did not—call

an expert to rebut Cruz’s testimony. Thus, while additional expert testimony on the

reliability or accuracy of the AVL system may have aided the jury in assessing the

weight of Cruz’s testimony, Dixon points to no piece of exculpatory evidence

that—had it been disclosed and introduced in a motion for new trial—would have

undermined confidence in the jury’s verdict. We hold that the trial court could

reasonably conclude that the additional expert testimony was not material or

exculpatory. Because Dixon did not establish a Brady violation, we overrule his

second issue.

Conclusion

Having overruled each of Dixon’s issues on appeal, we affirm the trial

court’s judgment.

Harvey Brown
Justice

Panel consists of Justices Bland, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3123058. Public record. Not legal advice.