Affirmed and Memorandum Opinion filed July 13, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-00791-CR

_______________

TRACY HARM, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________________________

On Appeal from the 12th District Court

Grimes County, Texas

Trial Court Cause No. 14,716

_______________________________________________________________________

M E M O R A N D U M   O P I N I O N

Tracy Harm appeals a conviction^[1] for indecency with a child on the grounds that the trial court erred in denying her motion for new trial, asserting a failure by the State to disclose favorable evidence.  We affirm.

            A trial court=s denial of a motion for new trial is reviewed for abuse of discretion.  Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). The prosecution violates a defendant=s due process rights if: (1) it suppresses, either willfully or inadvertently, (2) evidence favorable to the accused (either exculpatory or impeaching), and (3) prejudice ensues.  Banks v. Dretke, 124 S.Ct. 1256, 1272 (2004).  The duty of disclosure applies even without a request by the accused and even to information known only to police, investigators, or others acting on the government=s behalf in the case, but not the prosecutor.  Strickler v. Greene, 527 U.S. 263, 280-281 (1999).

In this case, appellant alleges that the State failed to disclose Child Protective Services (ACPS@) records (the Arecords@) showing the victim had made unfounded allegations of sexual abuse and engaged in inappropriate sexual behavior in the past, preceding and unrelated to the allegations against appellant.  The records were provided to defense counsel after trial by a CPS case worker who had represented to both sides and the trial court before trial that he had no such documents.  However, appellant cites no evidence that: (1) the State had, or was aware of, any such records before they were  provided to defense counsel; or (2) the CPS case worker or his office investigated, or was in any other way involved in, these allegations concerning appellant.  Under these circumstances, appellant=s sole issue fails to demonstrate that anyone acting on the government=s behalf in this case willfully or inadvertently suppressed the records and, thus, that the trial court abused its discretion in denying her motion for new trial.  Accordingly, appellant=s issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 13, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).