Roy James Little III v. the State of Texas

Opinion filed May 21, 2026

In The

Eleventh Court of Appeals
__________

No. 11-24-00306-CR
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ROY JAMES LITTLE III, Appellant
V.
THE STATE OF TEXAS, Appellees

On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. 24-067-DCCR-27275

MEMORANDUM OPINION
A jury convicted Appellant, Roy James Little III, of continuous sexual abuse
of a child, a first-degree felony. TEX. PENAL CODE ANN. § 21.02(b), (h) (West 2026).
The trial court assessed his punishment at imprisonment in the Institutional Division
of the Texas Department of Criminal Justice for twenty-seven years. Id. § 21.02(h).
In a single issue, Appellant contends that the trial court erred when it denied
his motion for mistrial because Appellant was deprived of the opportunity to
question the jury panel regarding Brady1 material that the State disclosed after voir
dire had concluded. We affirm.
I. Factual Background
Voir dire in the case proceeded on Friday, October 18, 2024, with a jury trial
scheduled to begin the following Monday, October 21. The morning of trial, and
prior to the time the empaneled jury was scheduled to arrive, the trial court advised
Appellant’s trial counsel that the State had discovered an e-mail the previous evening
from an out-of-state potential witness, Samuel Clifford Freeman, who claimed to
possess exculpatory evidence. Freeman is Appellant’s older brother. The State then
disclosed the e-mail to Appellant and his trial counsel. Although Appellant moved
for a mistrial, the State requested a continuance and the retention of the empaneled
jury. The trial court denied Appellant’s motion, granted a continuance, and reset the
trial to November 18, with a pretrial hearing for November 14. The trial court
memorialized its rulings in an order that granted Appellant’s written, unopposed
motion for continuance that was filed at the end of the day on October 21.
At the November 14 pretrial hearing, Appellant confirmed that Freeman
would testify and announced “ready” for trial; he also renewed his motion for
mistrial, which the trial court overruled. At trial, Appellant presented Freeman’s
favorable testimony. Freeman testified that, among other things, the first time he
spoke to Appellant’s trial counsel about the case was about a month before the
October 21 trial date. After the close of evidence, the jury convicted Appellant of
the charged offense.
II. Standard of Review
We review a trial court’s decision to deny a motion for mistrial for an abuse
of discretion. Hallman v. State, 721 S.W.3d 307, 313 (Tex. Crim. App. 2025);

1
See Brady v. Maryland, 373 U.S. 83 (1963).
2
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). “A mistrial is the trial
court’s remedy for improper conduct that is ‘so prejudicial that expenditure of
further time and expense would be wasteful and futile.’” Hawkins, 135 S.W.3d at
77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). “Only in
extreme circumstances, where the prejudice is incurable, will a mistrial be required.”
Id.
To measure an abuse of discretion for the trial court’s failure to grant a
mistrial, the Court of Criminal Appeals has adopted a three-factor test, which
balances: “(1) the severity of the misconduct (prejudicial effect), (2) curative
measures, and (3) the certainty of the punishment (likelihood of the conviction
absent the misconduct).” Lee v. State, 549 S.W.3d 138, 145 n.8 (Tex. Crim. App.
2018) (citing Hawkins, 135 S.W.3d at 77); see Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998).
III. Analysis2
Appellant contends that a mistrial was necessary because he was unable to
address Freeman’s potential testimony during voir dire, which only became known
to him after the jury was empaneled. He argues that the late-discovered e-mail
constitutes a Brady violation, the trial court’s refusal to grant a mistrial improperly
restricted his voir dire presentation, and this deficiency violates his right to due
process as well as the Sixth Amendment’s guarantees of effective assistance of
counsel and trial before an impartial jury.
The State has a constitutional duty under Brady to timely disclose material,
exculpatory evidence to the defendant. Brady, 373 U.S. at 87; see Pena v. State, 353

2
We note that the parties’ briefing leaves much to be desired, especially considering the routine
nature of the issue. The State’s brief, in particular—which does not even cite to a single authority—is
woefully inadequate.

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S.W.3d 797, 809–10 (Tex. Crim. App. 2011).3 To establish reversible error based
on a Brady violation, Appellant must establish: (1) the State failed to disclose
evidence, regardless of the prosecution’s good or bad faith conduct; (2) the withheld
evidence is favorable to him; and (3) the evidence is material in that there is a
reasonable probability that had the evidence been disclosed, the outcome of the trial
would have been different. Hance v. State, 714 S.W.3d 775, 821 (Tex. App.—Fort
Worth 2025, no pet.) (citing Pena, 353 S.W.3d at 809); see Ex parte Lalonde, 570
S.W.3d 716, 724 (Tex. Crim. App. 2019) (“Incorporated into the third prong,
materiality, is a requirement that [the] defendant must be prejudiced by the state’s
failure to disclose the favorable evidence.”) (quoting Harm v. State, 183 S.W.3d 403,
406 (Tex. Crim. App. 2006)).
We conclude that because the Brady material—the e-mail—was disclosed to
Appellant and his trial counsel in time for them to sufficiently prepare, address, and
use it during their presentation of evidence to the jury, the State’s late disclosure did
not prejudice him. See Gootee v. State, No. 11-19-00077-CR, 2021 WL 824627, at
*7 (Tex. App.—Eastland Mar. 4, 2021, no pet.) (mem. op., not designated for
publication); see also Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999)
(“If the defendant received the material in time to use it effectively at trial, his
conviction should not be reversed just because it was not disclosed as early as it
might have and should have been.”); Palmer v. State, 902 S.W.2d 561, 565 (Tex.
App.—Houston [1st Dist.] 1995, no pet.); Fitzgerald v. State, No. 11-96-00202-CR,
1997 WL 33797948, at *2 (Tex. App.—Eastland May 15, 1997, pet. ref’d) (not
designated for publication).

3
The State likewise has a statutory duty to promptly disclose exculpatory evidence. See TEX. CODE
CRIM. PROC. ANN. art. 39.14(h), (k) (West Supp. 2025). However, Appellant’s argument is limited to a
constitutional violation under Brady.

4
In Palmer, the State disclosed the existence of an exculpatory witness after
the conclusion of voir dire, and the defendant argued that this late disclosure
prejudiced him in the same manner that Appellant now asserts: he would have
conducted his voir dire and exercised his peremptory strikes differently considering
the Brady material. Palmer, 902 S.W.2d at 563–65. The court of appeals rejected
this argument and explained:
Any revelation of previously undisclosed Brady material to the defense
during trial would, we think, normally happen during the State’s
presentation of evidence to the jury, such that the defendant’s loss of
the opportunity to conduct voir dire or opening statement differently
would seem to be a concomitant of nearly every disclosure of Brady
material during trial—except for unusual instances in which the
previously undisclosed Brady material were to come to light during the
State’s own voir dire or opening statement, through the State’s own use,
at that stage of the trial, of the evidence constituting Brady material.
On this logic, the appellant normally would suffer loss of the
opportunity to conduct voir dire or opening statement differently only
where the State loses or foregoes that same opportunity, or utilizes it
only subtly enough that the defense is not alerted to the possible
existence of the evidence constituting Brady material. But where the
State loses or foregoes that same opportunity, or utilizes it only that
subtly, we find it difficult to envision a set of facts on which the
defense’s concomitant loss of that opportunity, standing alone, would
detract from the defense so disproportionately as to create a probability
sufficient to undermine confidence in the outcome of the proceeding.
Id. at 565–66.
Here, when the State disclosed that it had discovered Freeman’s e-mail and
the substance of his potential testimony, the trial court correctly granted a
continuance and reset the date for the trial on the merits. “[T]he disclosure of Brady
material at [or just before] trial gives the accused an opportunity to request a
continuance to review the evidence, and this opportunity adequately satisfies the due
process requirements of Brady.” Gootee, 2021 WL 824627, at *7 (quoting Cohen v.
State, 966 S.W.2d 756, 763 (Tex. App.—Beaumont 1998, pet. ref’d)); accord
5
Perez v. State, 414 S.W.3d 784, 790 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(“The disclosure of Brady material during trial satisfies the requirements of due
process ‘[i]f the defendant received the material in time to put it to effective use at
trial.’” (alteration in original) (quoting Palmer, 902 S.W.2d at 565)).
Appellant presented Freeman’s “favorable” testimony at trial, and Freeman
testified that he had spoken to Appellant’s trial counsel about the case approximately
one month before the trial was originally scheduled to begin. See Perez, 414 S.W.3d
at 789–90; Palmer, 902 S.W.2d at 565. We conclude that the trial court’s grant of a
continuance was the appropriate remedy to allow Appellant adequate time, which it
did, to investigate the substance of the Brady material and develop a defense. See
Bowser v. State, No. 04-16-00648-CR, 2018 WL 1831689, at *4 (Tex. App.—San
Antonio April 18, 2018, pet. ref’d) (mem. op., not designated for publication). In
this instance, the trial court did not abuse its discretion. Id.
Accordingly, we overrule Appellant’s sole issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

May 21, 2026
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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