Defendant's phone records subpoenaed prior to sexual assault trial. Received about a year before trial on CD from phone provider. I reviewed, and it appeared to me they did not send records for date range was asking for. The office has an open file policy and Defense was told we had the records but would have to review at our office since we were unable to copy the CD. Defense to my knowledge never reviewed the CD or printed out phone records from CD. At trial defendant testified that any communications he had with complainant were about church or church related activities and was only same as he told police 5-10 times. Then defense called complainant back to stand and handed her a big notebook of complainant's phone records. Defense counsel impeached her with them because she had contact with defendant after alleged incident but prior to outcry. Complainant testified that he had tried to contact her. Phone records of complainant indicate texts sent to defendant from complainant's phone and vice versa during this relevant period.

Defendant did not try to enter complainat's phone records into evidence even though they could have. After trial over I looked back over subpoenaed phone records of defendant and found June phone records(what I was wanting) under file titled August (not month I was needing).

Defendant is alleging in his motion for new trial that this was a brady violation.

1. These were defendant's phone records. He has access to his phone records and has personal knowledge of his communications with complainant from time of alleged incident to outcry date.

2. Defense counsel had complainant's phone records at trial and used them to impeach complainant.

3. Defense counsel never tried to enter the complainant's phone records he had at trial into evidence.

4. Defendant's phone records show the same texts as the complainant's phone records.

5. State disclosed to defense attorney that we had defendant's phone records well before trial. Told defense attorney would have to review at office b/c we were unable to make copy of CD (technical issues).

Does anyone see any issues? Thank you in advance for any input.

This message has been edited. Last edited by: C. Martin,

Brady does not apply when a defendant is already aware of the information. Hayes v. State, 85 S.W.3d 809 (Tex. Crim. App. 2002).

In U.S. v. Agurs, SCOTUS noted that Brady applies in situations where information was known to the prosecution but NOT the defense. 427 US 97. The CCA relied on Agurs in Harvard (800 SW2d 195) when it held that the defendant’s knowledge of the existence and contents of the information went a long way to relieving the State of any duty under Brady.

You could compare this to Jones (234 SW3d 151) where the State’s “failure” to disclose the defendant’s medical records was challenged as a Brady violation. “Without merit.”

It seems like the defendant’s use of the records to impeach should thwart any Brady arguments. The defense clearly knew of the existence of the records because (a) the defendant was directly involved in the communications and (b) defense counsel used the records for impeachment purposes during trial. Also, I’m still hoping that an open file policy counts for something – and if you had the records in an open file for a month before trial, and defense counsel never checked your file, shame on him. See Bagley, 473 US 667. There are some Texas cases along these lines as well.


A Brady violation also requires a “materiality” showing that undermines the confidence in the outcome of the proceeding. How could such a showing be satisfied if the evidence was actually used during the proceeding? Your court doesn’t have to ask “what if” the evidence had been used, because it was used – and therefore, it was not material since it did not change the outcome of the proceeding.

Hope something here helps.