Russell, David Allen, PD-0548-15

Background

David Allen Russell, a chiropractor, was tried in a consolidated jury trial on multiple counts of sexual assault and indecency with a child involving several victims; convictions and multi‑year sentences were imposed across four appellate cause numbers.
One victim, E.L.F., testified she was sexually assaulted by Russell after an October 2005 car accident and that records of that treatment from Russell were missing from her chart.
During trial the State received a Stowers letter from civil counsel Lance Baxter (documenting medical providers and bills after the October 2005 accident) but did not disclose it to defense counsel; the letter did not list Russell as a provider.
After conviction defense counsel learned of the letter; a motion for new trial alleged a Brady violation (failure to disclose favorable/exculpatory or impeachment evidence) and prosecutorial misconduct for eliciting testimony allegedly contradicted by the undisclosed letter.
At the motion for new trial hearing Baxter testified the absence of Russell in the letter meant E.L.F. had not been treated by Russell after the October 2005 accident; an investigator (Bowers) testified Baxter had not told him the letter meant that; the prosecutor (Miller) admitted she received but did not review or disclose the letter until after trial.
The trial court denied relief (by operation of law). The Thirteenth Court of Appeals affirmed, finding the letter was not favorable/exculpatory because it did not affirmatively say Russell did not treat E.L.F., and there was contradictory testimony about what Baxter told the State; the court rejected the Brady and misconduct claims and affirmed the convictions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State violated Brady by failing to disclose Baxter's Stowers letter	The letter was suppressed, constituted favorable impeachment/exculpatory evidence (it omitted Russell as a provider), and was material — had it been disclosed defense counsel would have used Baxter's testimony to impeach E.L.F. and likely changed the verdict	The letter did not affirmatively contradict E.L.F.’s trial testimony (it merely omitted Russell), and there was no evidence the State knew the letter meant E.L.F. wasn’t treated by Russell	Court affirmed: first Brady element (suppression) conceded, but the letter was not shown to be favorable/exculpatory or material given contradictory testimony and other plausible explanations for omission; no abuse of discretion in denying new trial
Whether the prosecutor committed misconduct by presenting allegedly perjured testimony while knowing of exculpatory evidence	Because the State received Baxter's letter and knew it undermined E.L.F.’s testimony, the prosecutor suborned/permitted false testimony and thus committed misconduct	The State lacked knowledge that Baxter’s letter meant E.L.F. wasn’t treated by Russell (investigator contradicted Baxter); prosecutor did not know of a factual contradiction and thus did not commit misconduct	Held against Russell: trial court could credit the investigator’s testimony over Baxter’s; no showing prosecutor knew of falsity or suppressed known exculpatory evidence
Whether any Brady error requires reversal of all consolidated convictions	The cases were intrinsically entwined; suppression in the E.L.F. matter tainted the other counts and warrants reversal of all convictions	Because no Brady violation was shown, no taint extended to the other convictions	Not reached as dispositive after rejecting Brady claim; appellate court affirmed all convictions
Standard of review: sufficiency of showing Brady materiality at motion for new trial	Defense: materiality shown because the omitted evidence would have undermined confidence in verdict on the key count (October 2005 assault)	State: materiality not shown; letter not exculpatory on its face and other reasons could explain omission	Court applied abuse‑of‑discretion review of the motion for new trial and found the trial court could reasonably conclude defendant did not meet Brady’s favorability/materiality requirements

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (prosecution must disclose favorable material evidence)
Kyles v. Whitley, 514 U.S. 419 (Brady duty extends to evidence known to the prosecution team)
United States v. Bagley, 473 U.S. 667 (impeachment evidence falls within Brady if it undermines confidence in outcome)
Pena v. State, 353 S.W.3d 797 (Tex. Crim. App.) (state Brady standards and materiality analysis)
Harm v. State, 183 S.W.3d 403 (Tex. Crim. App.) (Brady elements and disclosure duties)
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App.) (remedy when Brady satisfied)
Butler v. State, 736 S.W.2d 668 (Tex. Crim. App.) (Brady reversal principles)
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App.) (definition of “the State” and prosecutors’ knowledge)
Strickland v. Washington, 466 U.S. 668 (materiality context re: confidence in outcome)