Francis, Tracy Blaine

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0519-13

TRACY BLAINE FRANCIS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY

P RICE, J., delivered the opinion of the Court in which M EYERS, W OMACK ,
K EASLER, H ERVEY, C OCHRAN and A LCALA, JJ., joined. K ELLER, P.J., and J OHNSON,
J., concurred in the result.

OPINION

A jury convicted the appellant of aggravated robbery and assessed his punishment,

enhanced with one prior felony conviction, at seventy-five years’ imprisonment. On appeal,

the appellant argued that the prosecutor willfully violated a pre-trial discovery order and that

the trial court erred in failing to exclude from jury consideration the evidence that was

wrongfully withheld from his court-ordered pre-trial scrutiny. The court of appeals held,
 Francis — 2

with one justice dissenting, that the trial court did not abuse its discretion in concluding that

the prosecutor’s violation of the discovery order was not willful and that exclusion of the

evidence was, therefore, unnecessary.1 We granted the appellant’s petition for discretionary

review in order to examine this holding. We now affirm.

FACTS AND PROCEDURAL POSTURE

At Trial

The indictment alleged that the appellant robbed Deborah Thomas, a woman with

whom he was living, by threatening her and placing her in fear of imminent bodily injury and

death, and that he “used a deadly weapon, namely, A KNIFE.”2 Three and a half months

before trial, the trial court signed a discovery order that required the State, inter alia, to

provide the defense with an opportunity to “[i]nspect . . . all physical objects to be introduced

as part of the State’s case [and] [a]ll weapons . . . seized or acquired by the State or its agents

in the investigation of the alleged offense.” On the first day of a three-day trial, after the jury

had been selected and the trial court had taken a break for lunch, the appellant’s counsel

noticed a large machete among the physical items the State intended to introduce at trial.

When the proceedings reconvened after lunch, the appellant immediately complained to the

trial court that “what is in our pleadings is a knife, nothing about a machete.” He objected

1

Francis v. State, __ S.W.3d __, 2013 WL 1694854 (Tex. App.—Houston [1st Dist.] 2013).
2

See T EX. P ENAL C ODE §§ 29.02(a)(2), 29.03(a)(2).
 Francis — 3

to its introduction into evidence because “that is not the knife that they’re going to talk about

that is the subject of the indictment.” The prosecutor replied, “There’s two knives that were

used that night, this one and another one.” The trial court issued a limine order requiring the

parties to approach the bench before making any mention of the machete to the jury.

Trial then commenced with the testimony of a policeman and a counselor in the family

violence section of the Houston Police Department, both of whom described the injuries that

Thomas suffered on the night of the robbery in the apartment in which the appellant and

Thomas were living. Neither witness mentioned the machete during direct examination. On

cross-examination, both testified that Thomas made no claim to them that she had been

threatened with a knife of any kind, and the police recovered no knife from the scene.

On the morning of the second day of trial, the appellant filed a motion for

continuance, complaining that the preceding day had been “the first time defense counsel had

been made aware of a machete in the State’s possession or of the State’s intention to

introduce it into evidence.” In his prayer, the appellant asked the trial court “to allow

investigation into the machete . . . to formulate a defensive strategy.” The trial court signed

an order granting the motion, adding a notation that the “matter [was] taken up and [the]

issue resolved[,]” and that defense “counsel [was] given [an] opportunity to inspect [the

machete] and confer with his client.” On the record, the appellant’s counsel acknowledged

that he had indeed “had a chance to inspect the machete in question and [had] had ample
 Francis — 4

opportunity to speak to his client about it and prepare for cross-examination.” But counsel

nevertheless informed the trial court that this access to the machete “doesn’t eliminate the

objections that will be made.” The limine order remained in effect as Thomas took the

witness stand.

Thomas testified that the appellant was acting strangely and had apparently been

taking drugs on the night of the robbery. He straddled her on her bed and beat her about the

head with his fists, inflicting between twenty and thirty blows and knocking out four of her

teeth. She wavered in and out of consciousness during this ordeal, but she remembered that

at one point the appellant also threatened her with a small knife (“like a pocketknife”) and

with the machete, both of which she kept at her bedside for protection. Eventually the

appellant took the money he knew she kept in her bra and left the apartment, at which point

she was able to call the police.

When Thomas came to testify specifically about the machete, the jury was retired and

the trial court asked the prosecutor to explain why the machete had not been made available

to defense counsel within the terms of the discovery order. She explained:

[PROSECUTOR]: I brought the machete as evidence. And when I was
showing the defense counsel all of the evidence that I was intending to offer
in this trial, that’s when he mentioned that he hadn’t seen the machete. I did
receive the machete from Ms. Thomas when I went to interview her in
preparation for trial. That is the first time I knew about it.

THE COURT: When was that?
 Francis — 5

[PROSECUTOR]: That was in -- I don’t remember.

THE WITNESS: Last month.

[PROSECUTOR]: Yeah. It was before the last trial setting, I believe.
So far in advance. It’s been in my possession since that time. I honestly didn’t
know that the defense didn’t know about the machete. I thought that it was in
the offense report, but it wasn’t.

The trial court again recounted for the record that it had granted the motion for continuance

that morning to allow inspection of the machete. The appellant’s counsel acknowledged as

much, but argued that the machete should be excluded from evidence anyway:

[DEFENSE COUNSEL]: And just, so I’m clear on this, the State was
aware of the discovery order and was aware that it had an affirmative duty to
turn over any further evidence that was applicable to the discovery order. And
if this machete was found in September and the order was granted in July and
we just found out about it yesterday, then this is a violation of that discovery
order under [Article] 39.14. And we’d request then that the machete be
inadmissible because of that.

Moments later, the prosecutor again explained that she had mistakenly believed that the

defense was aware of the existence of the machete because it was mentioned in the State’s

file.

[PROSECUTOR]: When [Thomas] talked to Ms. Logan, who was the
prosecutor in the court before me, she told Ms. Logan about the machete as
well, which was in Ms. Logan’s notes, which was in the file that was open to
defense counsel. I don’t know if it was ever brought to their attention because
I haven’t been on this case since the beginning. I just -- and it was my mistake
to assume that they knew about it.

And then -- that’s it.

THE COURT: So, there are notes -- is it work product notes or notes
 Francis — 6

that were available?

[PROSECUTOR]: It was her notes. I don’t know if she had them in
a work product folder or not. I don’t know that. But they were notes in the
file.

When the trial court asked defense counsel how the belated revelation of the machete

surprised them, counsel responded:

[DEFENSE COUNSEL]: Well, Judge, we would contend that the
surprise that is being brought on the defense by this has affected our ability to
cross-examine the responding officer and the counselor who were up on the
stand the other day. Because it is part of our defensive theory that the
defendant did not have a weapon. And now, for there to be a second weapon
alleged, has affected our ability to cross-examine.

THE COURT: But you knew about the machete before those people
testified, right? Because as I recall, before the jury came back in –

[PROSECUTOR]: I showed the defense -- I showed defense counsel
all of the exhibits I intended to use during the lunch break after we -- we
picked the jury.

Defense counsel objected that, even after learning of the existence of the machete from the

prosecutor after jury selection, they had been given no notice that the State intended to prove

that it was the knife allegedly used to threaten Thomas during the robbery. The State refuted

this contention:

[PROSECUTOR]: That’s not true. I told them yesterday that -- that --
I told -- I said yesterday that this was the allegation that was being made, that
[the appellant] had the machete on the bed next to her.

The trial court made no express ruling on the willfulness of the prosecutor’s conduct but did

decline to exclude the machete from evidence and allowed Thomas to testify about it. On
 Francis — 7

cross-examination, Thomas could not remember whether she had mentioned the machete in

her 9-1-1 call or to the emergency responders or the police. During his final arguments, the

appellant’s counsel argued that the State had failed to prove the particular theory of

aggravated robbery it had alleged, urging the jury to acquit the appellant for lack of evidence

that the appellant ever threatened Thomas or placed her in fear of death or imminent bodily

injury—at all, much less with a knife—as alleged in the indictment.

On Appeal

In the court of appeals, the appellant argued that the trial court erred in failing to

exclude evidence of the machete on account of the prosecutor’s willful disregard of the trial

court’s discovery order. The First Court of Appeals rejected this point of error, reasoning

that “the trial court could reasonably conclude from the prosecutor’s statements that the State

did not willfully withhold the machete in violation of the discovery order,” and that,

therefore, “the trial court did not err in admitting the machete into evidence over [the

appellant’s] objection to the discovery order violation.”3 Justice Keyes dissented, however,

opining that the circumstances of this case “are akin to the circumstances in Oprean, which

the Court of Criminal Appeals determined required the exclusion of evidence.”4 Because of

this disagreement among the justices in the court of appeals, we granted the appellant’s

3

Francis, 2013 WL 1694854, at *5.
4

Id. at *17 (Keyes, J., dissenting) (citing Oprean v. State, 201 S.W.3d 724, 728 (Tex. Crim.
App. 2006)).
 Francis — 8

petition for discretionary review.5

THE LAW

“[E]vidence willfully withheld from disclosure under a discovery order should be

excluded from evidence[.]”6 Because exclusion of evidence in this context is in the nature

of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should

exclude evidence on this basis has been made to hinge on “whether the prosecutor acted with

the specific intent to willfully disobey the discovery order[.]” 7 Extreme negligence or even

recklessness on the prosecutor’s part in failing to comply with a discovery order will not,

standing alone, justify the sanction of excluding relevant evidence.8

An appellate court must review a trial court’s ruling to exclude evidence for willful

prosecutorial defiance of a discovery order under an abuse-of-discretion standard, deferring

to any trial-level ruling that falls within the zone of reasonable disagreement.9 We have

adopted a similar appellate posture in this context to that which we have applied to review

5

T EX. R. A PP. P. 66.3(c), (e).
6

Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).
7

Oprean, 201 S.W.3d at 727.
8

State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004). Negligent or reckless failure to
comply with a discovery order may call for the exclusion of evidence if the appellant suffers some
disability by virtue of the lack of discovery and the trial court takes no timely corrective action. See
id. at 100 (Cochran, J., concurring); Oprean, 201 S.W.3d at 728-30 (Cochran, J., concurring).
9

Oprean, 201 S.W.3d at 726.
 Francis — 9

pre-trial motions to suppress evidence: An appellate court must pay almost absolute

deference to the trial court’s findings of fact based on determinations of credibility or

demeanor.10 And in the absence of any specific findings of fact from the trial court (either

oral or written) spread on the record, a reviewing court must assume that the trial court

resolved all fact issues in a way that is consistent with its ultimate ruling, so long as those

presumed findings of fact are supported by the record.11

ANALYSIS

Exclusion as a Function of Prosecutorial Willfulness

We have never specified whether the issue of a prosecutor’s willfulness is a question

of fact or, instead, a mixed question of law and fact. Nor need we specify today. Even

assuming that it is a mixed question of law and fact, here that mixed question would

ultimately turn on the credibility of the prosecutor’s explanations and of her assertions that

she was not even aware until the morning of trial that the discovery order had not been

10

Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). In the context of
motions to suppress, we have further held that “[a]ppellate courts may review the legal significance
of undisputed facts de novo.” Robinson v. State, 377 S.W.3d 712, 723 (Tex. Crim. App. 2012) (citing
State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008)). We did not address this question
in Oprean—perhaps because of language in Guzman to the effect that “[a]n appellate court’s review
of a trial court’s evidentiary rulings generally does not involve an ‘application of law to fact question’
or a ‘mixed question of law and fact.’” Guzman, 955 S.W.2d at 89. Even assuming that the question
of a prosecutor’s willfulness in violating a discovery order represents the sort of “mixed question” that
does not typically arise in the appellate review of ordinary evidentiary rulings, see text, post, in this
case that mixed question turned on the trial court’s assessment of the prosecutor’s credibility, to which,
under Oprean, a reviewing court owes “almost total deference[.]” Oprean, 201 S.W.3d at 726.
11

Id. (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).
 Francis — 10

satisfied. Under these circumstances, we owe almost absolute deference to the trial court’s

implicit conclusion that the prosecutor’s conduct was less than willful.

That is not to say that the facts of this case could not support a conclusion that the

prosecutor in fact acted willfully. After all, what the discovery order explicitly required was

that the appellant be given a timely opportunity to “inspect” the State’s physical evidence,

including any weapons uncovered in its investigation. Even if the prosecutor believed in

good faith that the appellant was aware of the existence of the machete, since it was

mentioned in the State’s file to which the defense was granted access, and even if she was

only negligent with respect to whether the previous prosecutor’s mention of the machete

(“Ms. Logan’s notes”) was undisclosed work product, she was still, strictly speaking, in

violation of the discovery order. This is because, having secured the machete herself from

Thomas and kept it in her possession until the opening day of trial,12 the prosecutor should

certainly have realized that the appellant had been deprived of the opportunity to inspect

it—even if the appellant’s counsel was aware of the fact of its existence from having perused

12

The version of Article 39.14 that was in place at the time of the appellant’s trial contained no
explicit language imposing a continuing duty on prosecutors to disclose discoverable matters that come
into the State’s possession only after the issuance of the discovery order itself. Indeed, although the
recent revision to Article 39.14, the so-called Michael Morton Act, has for the first time included a
duty of continued disclosure, that duty pertains only to exculpatory matters. See Acts 2013, 83rd Leg.,
ch. 49, § 2, p. 107-08, eff. Jan. 1, 2014 (adding Subsections (h) and (k) to T EX. C ODE C RIM. P ROC. art.
39.14, requiring the State to disclose “any additional document, item, or information” of an
“exculpatory, impeachment, or mitigating” nature). Nevertheless, the particular discovery order in the
instant case contained what amounts to its own provision for continuing discovery: “The State is
Ordered to furnish the above for inspection and copying 10 working days before trial, or as soon as
reasonably practicable after any such information comes to their knowledge, whichever is earlier.”
 Francis — 11

the State’s file. Moreover, it is not altogether apparent that any mention of the machete in

the State’s file would have served to alert the appellant’s counsel that the machete was the

very “KNIFE” alleged in the indictment. From these circumstances, the trial court could

rationally have concluded that, despite her protestations to the contrary, the prosecutor’s

behavior constituted “a calculated effort to frustrate the defense[,]” as in Oprean.13

But the trial court was not obliged to draw that conclusion. That the prosecutor should

have been aware that her exclusive possession of the machete prevented the appellant from

inspecting it, as the discovery order required, does not necessarily mean that she was aware

of that fact. Her conduct may have been only reckless, or merely negligent, in that regard.14

As we said of the prosecutor in LaRue, although the prosecutor’s conduct in retaining the

machete in this case may itself have entailed a “willful choice,” that does not necessarily

establish that she harbored a conscious objective to thwart the discovery order.15 The

prosecutor effectively denied any such conscious objective,16 and it was no abuse of

13

Oprean, 201 S.W.3d at 728.
14

LaRue, 152 S.W.3d at 97.
15

Id.
16

First, the prosecutor asserted that, when she was showing the appellant’s counsel her evidence
after jury selection, “that’s when he mentioned that he hadn’t seen the machete.” She then informed
the trial court that she herself had been the one to “receive the machete from Ms. Thomas when I went
to interview her in preparation for trial.” Her next statement was: “That is the first time I knew about
it.” It is unclear what the antecedent to the word “it” is in this last sentence. Does it refer to the
machete or to the fact that the appellant’s counsel “hadn’t seen the machete” until after jury selection?
 Francis — 12

discretion for the trial court to credit her denials (as we must assume it did, absent any

express finding with respect to willfulness) and, on that basis, reject the inference that “the

prosecutor’s conduct here was a calculated effort to frustrate the defense.” 17

As did the majority in the court of appeals,18 we think that Oprean is distinguishable.

It was undisputed that, on the eve of the punishment phase of Oprean’s DWI trial, the

prosecutor assured defense counsel that the only evidence she planned to introduce the next

day were judgments and sentences from his previous convictions.19 Notwithstanding that

assurance, the next day she offered a videotape of one of Oprean’s prior offenses that fell

squarely within the ambit of the trial court’s pre-trial discovery order.20 The only explanation

the prosecutor proffered for this lapse was that Oprean had failed to request notice of

extraneous offenses that the State intended to offer at the punishment phase of trial, in

The trial judge was in the best position to resolve this ambiguity, and we must presume that he took
her to mean the latter. This is reinforced by the prosecutor’s subsequent assertions that she “honestly
didn’t know that the defense didn’t know about the machete[,]” and that “it was [her] mistake to
assume that they knew about it.” From these statements, the trial court could infer that the prosecutor’s
failure to reveal the existence of the machete was not purposeful.
17

Oprean, 201 S.W.3d at 728.
18

Francis, 2013 WL 1694854, at *5.
19

Oprean, 201 S.W.3d at 725, 727.
20

Id. at 725.
 Francis — 13

keeping with Article 37.07, Section (3)(g) of the Code of Criminal Procedure.21 But the

discovery order was in no way contingent on such a request.22 Under these objective facts,

and observing that “the validity of the explanation offered by the prosecutor is a relevant

factor that should be considered when determining willfulness[,]” we concluded that the only

thing the trial court could rationally have concluded was that the prosecutor’s conduct was

consciously intended to “frustrate” what she knew to be the clear dictates of the pre-trial

discovery order.23

The appellant argues that there are similar objective circumstances in this case from

which it can only be concluded that the trial court abused its discretion to credit the

prosecutor’s denials of a conscious objective to thwart the discovery order. Specifically, the

appellant argues that the prosecutor in this case also failed to timely disclose the existence

of audio recordings of telephone conversations that the appellant had while he was awaiting

21

Id. at 725, 727. See T EX. C ODE C RIM. P ROC. art. 37.07(3)(g) (notice of intent to introduce
evidence of extraneous misconduct at the punishment phase of trial “shall be given” upon “timely
request” of the defendant).
22

Id. at 728.
23

Id. See George E. Dix & John M. Schmolesky, 42 T EXAS P RACTICE: C RIMINAL P RACTICE AND
P ROCEDURE § 27:83, at 585 (3d ed. 2011) (“The issue in Oprean seems to have been whether the trial
judge was required to find that the prosecutor did not in fact believe her offered explanation that she
thought the [discovery] order did not cover evidence to be introduced only at punishment. Although
the opinion does not explicitly say so, the majority appears to have concluded the trial judge could only
have found that despite her protestations, the prosecutor in fact knew the order required production of
items to be offered at punishment and nevertheless failed to produce one item she intended to offer at
that stage.”)
 Francis — 14

trial in the Harris County Jail that were relevant at the punishment phase of trial.24 We agree

that proof of a consistent pattern of failure to comply with a discovery order is another

relevant circumstance to take into account in gauging the willfulness, vel non, of the

prosecutor’s conduct. But here again, the prosecutor offered a plausible explanation to the

trial court why her failure to disclose the phone recordings sooner was not willful.

Thomas testified again at the punishment phase of trial. The prosecutor asked her

whether, while the appellant was in jail, he had ever threatened her on the telephone. Before

Thomas could answer, the appellant objected that he had not been notified of the State’s

intent to introduce evidence of such extraneous misconduct as required by Article

37.07(3)(g).25 A bench conference ensued in which the prosecutor explained that she had

learned of the phone call containing the threat only on the Friday before trial began, and she

notified the appellant’s counsel within twenty minutes of her discovery, providing the

defense with a copy. When the appellant remarked that the recordings were voluminous, the

prosecutor explained that she had also informed him that she was interested only in the

particular phone conversation between the appellant and Thomas, which was the first call on

24

The trial court’s discovery order also encompassed disclosure of “[a]ll video and tape
recordings, which contain the defendant or his/her voice.”
25

See note 21, ante. In a separate point of error on appeal, the appellant complained that the trial
court erred to admit Thomas’s testimony about the telephonic threat in light of the State’s violation of
Article 37.07(3)(g). The court of appeals rejected this contention, Francis, 2013 WL 1694854, at *8-
10, and it is not before us in this petition for discretionary review.
 Francis — 15

the recording and lasted no more than twenty minutes. On this representation, the trial court

overruled the appellant’s objection and allowed Thomas to testify to the substance of the

threat. Neither the State nor the appellant attempted to introduce the recording itself.

The record does not reveal why the prosecutor could not have learned of the phone

recording sooner than the Friday before trial, or whether she had been aware of the

appellant’s threat from some other source, such as a pre-trial interview with Thomas. But

the appellant did not challenge the prosecutor’s assertion that she informed him of the

recording as soon as she discovered it. Nor did he ask the trial court to reconsider its guilt-

phase ruling on the admissibility of the machete in light of the relevance of this separate

incident (if any) to demonstrate the prosecutor’s evident willfulness.26 But even had he done

so, the trial court would have been entitled to credit the prosecutor’s undisputed account that

she disclosed the existence of the jail recordings, and provided the appellant with a copy, at

her earliest opportunity. Even considering this punishment-phase incident in tandem with

the prosecutor’s failure to timely tender the machete for inspection does not ineluctably

26

The appellant did not expressly complain at the punishment phase of trial that the prosecutor
had once again violated the trial court’s discovery order, much less did he request the trial court to
revisit its guilt-phase ruling on the prosecutor’s willfulness, perhaps to grant a mistrial. Without such
a request, it is far from clear that the punishment-phase incident in this case was available to inform
appellate review of the propriety of the trial court’s ruling that the machete was admissible at the guilt
phase of trial. See, e.g., Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (“As a general
rule, an appellate court reviewing a trial court’s ruling on the admission or exclusion of evidence must
do so in light of the arguments, information, and evidence that was available to the trial court at the
time it ruled.”); George E. Dix & John M. Schmolesky, 43B T EXAS P RACTICE: C RIMINAL P RACTICE
AND P ROCEDURE § 56:134, at 459-60 (3d ed. 2011) (same) .
 Francis — 16

establish willfulness—to the exclusion of a legitimate inference of negligence or

recklessness—as did the objective facts in Oprean. We cannot say that the trial court here

abused its discretion.

Exclusion as a Function of Due Process

In LaRue, we had no occasion to address “what remedies are available when the

State’s conduct is of a less culpable nature” than willfulness.27 Judge Cochran joined the

Court’s opinion but, along with two other judges, she also observed that, “[h]ad the

defendant shown that he was unable to prepare a defense . . . in the time remaining before

trial, I would be less concerned about the ‘willfulness’ of the prosecutor and more concerned

about the due process rights of the defendant.”28 Similarly, in a concurring opinion in

Oprean, while skeptical of the Court’s conclusion that the prosecutor’s violation of the

discovery order was willful, Judge Cochran nevertheless agreed “that the trial court abused

its discretion in admitting the videotape in violation of the discovery order without also

ensuring the defendant’s right to due process notice.”29 In Oprean, the trial court did not so

much as “declare a short recess for the defense (and the trial judge) to view the videotape and

27

LaRue, 152 S.W.3d at 100.
28

Id. (Cochran, J., concurring, joined by Meyers and Holcomb, JJ.).
29

Oprean, 201 S.W.3d at 729 (Cochran, J., concurring, joined by Keller, P.J.).
 Francis — 17

prepare for the State’s offer.”30 Here, by contrast, the trial court did grant a continuance, and

the appellant confirmed on the record that the delay was sufficient to allow him to inspect

the machete prior to its admission into evidence and to consult about it with counsel—which

was, after all, the only thing that the discovery order explicitly guaranteed him. Moreover,

we are unpersuaded that the appellant was disadvantaged in any other material way by his

belated receipt of notification of the full significance the State would attribute to the machete

(i.e., that it was the “KNIFE” alleged in the indictment).

First of all, the appellant has not shown that he was prejudiced pre-trial. For example,

he does not contend that his ignorance of the machete caused him to forgo a favorable plea

bargain. Nor would the record support such a contention. There is no indication that the

State ever offered the appellant such a plea bargain, much less that he would have accepted

the offer had he only known about the machete in time.

Secondly, it is not evident how the tardy revelation of the machete’s role in the State’s

case substantially impaired the appellant’s actual defensive posture at trial. He was still able

to impeach Thomas substantially, highlighting the fact that she failed to mention the

existence of a knife (of any kind, much less one as indelible as a machete) either during her

initial call to 9-1-1, or to the first emergency responders, the investigating police officers, and

the family violence counselor. We seriously doubt it was the machete (which, the evidence

30

Id. at 730.
 Francis — 18

showed, was not recovered by the police at the scene) that ultimately tipped the balance for

the jury, causing it to believe Thomas’s testimony that the appellant did in fact threaten her

with a knife when it otherwise would not have.

Nor does the appellant otherwise explain to our satisfaction how his defensive posture

could have materially improved had he been alerted to the significance of the machete earlier.

To be sure, he does complain that the sight of the machete was so frightening that it could

only have prejudiced the jury against him. And indeed, the machete was described on the

record (at least by appellant’s counsel, during Thomas’s cross-examination) as “giant, big,

[and] scary[.]” Nevertheless, despite having inspected the machete during the continuance,

the appellant neither objected at trial nor argued on appeal that it should have been excluded

from evidence because its probative value was substantially outweighed by its potential to

unfairly prejudice the jury.31 The late disclosure of the existence and significance of the

machete did not prevent the appellant from lodging such an objection.

Accordingly, even under Judge Cochran’s view that due process would oblige a trial

court to exclude evidence that was not timely revealed under a pre-trial discovery order,

without regard to the willfulness of the prosecutor, if the resulting lack of timely notice

would substantially impair the defendant’s ability to investigate and prepare his defense, we

do not think the trial court erred in allowing the State to introduce the machete into evidence

31

See T EX. R. E VID. 403 (“Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice[.]”).
 Francis — 19

on the facts of this case.

CONCLUSION

We therefore affirm the judgment of the court of appeals.

DELIVERED: April 30, 2014
PUBLISH