Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 99th District Court Lubbock County, Texas
Trial Court No. 2016-523, 428-A, Honorable William C. Sowder,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Quinn Chief Justice
Alan Conroy (Conroy) (pro se) sued miscellaneous defendants
in a civil action on miscellaneous grounds. The suit arose
from his arrest for and ultimate federal conviction of
possessing child pornography. Several of the defendants were
Sheriff Cliff Harris, Pecos County and the Pecos County
Sherriff's office (collectively referred to as Pecos).
Pecos moved to dismiss the action under Rule 91a of the Texas
Rules of Civil Procedure. The trial court granted the motion
and dismissed with prejudice. Through four issues, Conroy now
contends that the trial court erred in granting the motion
and denying his request for appointed counsel. We affirm.
first topic we address is the dismissal of his suit against
Pecos. The underlying premise of Conroy's suit concerns
the existence of exculpatory information and whether
withholding it denied him the constitutional right of due
process, which denial may be redressed via a civil action.
The purported exculpatory evidence consisted of a video taken
by Pecos. The video purportedly memorialized Pecos
transporting him upon his arrest. Conroy wanted the video and
sued Pecos, alleging that withholding it constituted a
violation of Brady v. Maryland, 373 U.S. 83 (1963)
and a denial of his constitutional right to due process.
Pecos moved to dismiss the suit under Rule 91a of the Texas
Rules of Civil Procedure. See Tex. R. Civ. P. 91a(1)
(stating that a party may move to dismiss a cause of action
on the grounds that it has no basis in law or fact). Through
its motion, Pecos asserted that Conroy was collaterally
estopped from pursuing the action and requested that the
trial court take judicial notice of various documents filed
in federal actions and various judgments issued by the
federal courts entertaining those proceedings. Such courts
were located both in and out of Texas.
trial court at bar convened a hearing on the motion, received
into evidence a flash drive containing the aforementioned
documents and judgments, and judicially noticed its
contents. The hearing eventually resulted in
issuance of the dismissal order under attack.
procedural rules obligate an appellant to bring forward an
appellate record sufficient to show error requiring reversal.
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.
1990); Washer v. City of Borger, No. 07-16-00413-CV,
2018 Tex.App. LEXIS 5929, at *11 (Tex. App.-Amarillo July 31,
2018, no pet.) (mem. op.); Nicholson v. Fifth Third
Bank, 226 S.W.3d 581, 583 (Tex. App.-Houston [1st.
Dist.] 2007, no pet.). If that record omits evidence admitted
by the trial court, then we presume that the omitted evidence
supports the trial court's judgment. Palla v.
Bio-One, Inc., 424 S.W.3d 722, 727-28 (Tex. App.-Dallas
2014, no pet.) (quoting In re Estate of Arrendell,
213 S.W.3d 496, 503 (Tex. App.-Texarkana 2006, no pet.));
accord Crown Life Ins. Co. v. Gonzalez, 820 S.W.2d
121, 122 (Tex. 1991) (holding that absent a complete record
on appeal, it must presume the omitted depositions supported
the trial court's judgment). Additionally, without a
complete record, we also conclude that the appellant waived
points of error or issues dependent on the state of the
evidence. Washer, 2018 Tex.App. LEXIS 5929, at *12.
flash drive tendered by Pecos and accepted by the trial court
does not appear within the appellate record. Thus, its
contents are also missing from the appellate record. This
means that the record is incomplete. Consequently, we presume
the missing information supported the trial court's
decision to dismiss and conclude that appellant waived his
complaint regarding dismissal with prejudice.
also observe that the obligation to disclose exculpatory
information under Brady v. Maryland may implicate
the due process clause of the United States Constitution.
Matthew v. Johnson, 201 F.3d 353, 360
(5th Cir. 2000). Yet, it has been explained that a
Brady violation "is defined in terms of the
potential effects of undisclosed information on a judge's
or jury's assessment of guilt." Id. at
361-62. Given that, it has also been held that "the
failure of a prosecutor to disclose exculpatory information
to an individual waiving his right to trial is not a
constitutional violation." Id. Indeed, a guilty
plea bars a defendant from urging a Brady violation.
United States v. Conroy, 567 F.3d 174, 178
(5th Cir. 2009). Conroy's federal conviction
arose from his plea of guilty. There was no trial. So, per
Matthew and Conroy, his purported Brady
claim is nonexistent. In other words, it does not amount to a
constitutional violation. Thus, his civil suit to redress a
constitutional violation which actually is not a
constitutional violation could be said to be groundless per
Rule 91a. So, it was subject to dismissal under that Rule.
the issue regarding appointed counsel, various statutes
require the appointment of counsel in a civil case. We know
of none applicable here. Yet, the trial court still has the
discretion to appoint counsel if it chooses. But, a refusal
to do so is not an abuse of discretion when the indigent
party fails to demonstrate why the public and private
interests at stake are so exceptional that the administration
of justice is served by the appointment. Fairfax v.
Smith, No. 07-09-0321-CV, 2010 Tex.App. LEXIS 1816, at
*2-3 (Tex. App.-Amarillo Mar. 16, 2010, no pet.) (mem. op.).
While Conroy suggests that his circumstance presents an
exceptional case given his imprisonment and supposed lack of
access to legal resources like a law library, we disagree.
Being an inmate alone is not enough. Id. That his
appellate brief contains a plethora of citation to legal
authority also tends to belie his suggestion he cannot access
such authority. And, as said above, his claim against Pecos
is groundless given the absence of a constitutional
violation. So, we cannot say his circumstances were or are
those which make the decision to deny counsel an abuse of
we affirm the judgment of the trial court.
Campbell, J., ...