Discussion in 'Celebrities' started by Cmac, Sep 2, 2013.
Why the hell would anyone wear that and think they could look good??
Perhaps this should be in takedowns?
Not that she was ever skinny, but she looks huge there!
Alicia has gained some weight, but she was never a twig, so fine.


Approximate color of Radiant Fire (matt) Jeep Hard Top touch up paint.
Order spray cans, paint pens, brush cap bottles or larger sizes of Radiant Fire (matt) Jeep Hard Top touch up paint.
Verify your Jeep's color code is 'KRC' before ordering.
Always verify your Jeep color code on your vehicle before ordering. Radiant Fire (matt) Jeep Hard Top may go by several different names and the color sample shown above for 1991 Jeep All Models is approximate.


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These birthday quotes are a great place to start, but don't think you have to stick with only what's written here. Personalize the sentiment even more with an inside joke or special moment between you and the birthday boy or girl. Sending a heartfelt birthday card with the right intentions can make all of the difference on someone's big day. Make them feel special with the simplest birthday wish from you! Also, before you go, don't feel limited to just using these birthday quotes for cards. You can print them on décor pieces and hang them around the party, use them on birthday party invitations or however you'd like. Get ready to celebrate!
The American copyright status of "Happy Birthday to You" began to draw more attention with the passage of the Sonny Bono Copyright Term Extension Act in 1998. When the U.S. Supreme Court upheld the Act in Eldred v. Ashcroft in 2003, Associate Justice Stephen Breyer specifically mentioned "Happy Birthday to You" in his dissenting opinion.[15] American law professor Robert Brauneis, who extensively researched the song, concluded in 2010 that "It is almost certainly no longer under copyright."[16] In 2013, based in large part on Brauneis's research, Good Morning to You Productions, a company producing a documentary about "Good Morning to All", sued Warner/Chappell for falsely claiming copyright to the song.[5][10] In September 2015, a federal judge declared that the Warner/Chappell copyright claim was invalid, ruling that the copyright registration applied only to a specific piano arrangement of the song, and not to its lyrics and melody. In 2016, Warner/Chappell settled for US $14 million, and the court declared that "Happy Birthday to You" was in the public domain.[17][18]
November came along (5 months after I had launched the Life Binder) and I was packing my bags for Europe. The "cha-ching" sound from the Etsy app on my phone was a part of my daily life now...and life was good. As a single lady with not a lot of expenses, making even $1000 a month in passive income was a game changer. I was able to make better decisions in my business because I was not longer stressed out by money. In fact, I was working less and less, but making more and more.
So the moral of the story is that success takes time and it's all in your head. In my first 18 months on Etsy, I made less than $1000. In my second 18 months on Etsy, I made $30,000. What changed? I did. Now, looking back over this whole experience, I've taken inventory of the mindset shifts, the skills, the resources, and the knowledge that has helped me get to this point and I've created an online, self-paced course called Passive Income with Printables. It contains everything I would have LOVED to know when I started.
One of Sarah's biggest freelance jobs so far has been designing the Brilliant Business Planner! She landed this job by seeing a need for her service and reaching out to Sarah and Beth Anne. This is a great lesson for any entrepreneur -- it never hurts to ask. The worst thing that can happen is that someone says no, but on the flip side you could land a great job and a great partnership!
Artist Notes:	What a festive and fun way this card is to say Happy Birthday to all the special people in your life - whether friends, family or work associates. The card features a row of colorfully patterned and decorated candles, with diagonal stripes, polka dots, flowers and swirls on the candles of blue, green, pink and orange, on the black background. The result is a colorful line-up of candles, with flames atop, ready for the birthday celebration to begin. The hand lettered message, "Happy Birthday", is above the candle flames, in alternating brightly colored letters, that match the candle colors. The inside wording is "Hope your birthday sparkles!""
Our birthday card and gift selection allows you to easily browse birthday gifts for him, birthday gifts for her, and birthday gifts for kids. If you prefer to shop a different way, you can browse by type of gift, including categories such as home decor, kitchen goods and personalized books, among others. For special milestone birthdays, we offer specific gifts and cards to personalize their day even more!
Sarah lives in Washington State with her husband and three daughters. She creates printable organizational tools and planners and actually took our ideas and inspiration and brought them to life with her work on the Brilliant Business Planner! Sarah has been such a wonderful part of our Brilliant Business Moms community since it first began. She's kind, brilliant, and crazy talented!
Don't you love hearing Happy Birthday/Feliz Cumpleaños sung to you? The personalized Happy Birthday song is so fun that it makes a great birthday present for friends and family. The Happy Birthday song combines English, Spanish, dogs, your name and fun. Old or young, hip or hop, you'll have 1 Happy Birthday. So what's it going to be, Happy Birthday or Feliz Cumpleaños? The best Happy Birthday.
Have you ever thought to sell printables on Etsy as an extra source of income? Selling printables is easy to do and can be a great way to earn extra cash for bills, debt, or even the Christmas fund! In this post, we'll talk about how to sell printables on Etsy, various styles of printables, and there's a video full of tips and tricks at the bottom – so keep reading!
It is likely that teachers and students spontaneously adapted the published version of "Good Morning to All" to celebrate birthdays in the classroom, changing the lyrics to "Happy Birthday" in the process.[3] The complete text of "Happy Birthday to You" first appeared in print as the final four lines of Edith Goodyear Alger's poem "Roy's Birthday", published in her book A Primer of Work and Play, copyrighted by D. C. Heath in 1901, with no reference to the words being sung.[22] The first book including "Happy Birthday" lyrics set to the tune of "Good Morning to All" that bears a date of publication is from 1911 in The Elementary Worker and His Work, but earlier references exist to a song called "Happy Birthday to You" including an article from 1901 in the Inland Educator and Indiana School Journal.[23] Children's Praise and Worship, edited by Andrew Byers, Bessie L. Byrum and Anna E. Koglin, published the song in 1918. In 1924, Robert Coleman included "Good Morning to All" in a songbook with the birthday lyrics as a second verse. Coleman also published "Happy Birthday" in The American Hymnal in 1933.
This feature is another game changer. When you start building up several files in your Silhouette library, sometimes you want to get a glimpse of a file or recall who the original designer was. You can now double click on the small thumbnail and it expands to a pop out screen with all the pertinent info and details. What a timesaver. With a slider button, you can expand or decrease the thumbnails in this preview panel. Enhancing visibility when you have multiple files to look through is another huge enhancement. This feature gets a 5 star rating.
This versatile pack of 150 printable cards is wonderful for designing and printing your own sales & marketing collateral, flash cards, recipes, coupons, RSVP cards, decorative post cards and more. These blank index cards are unlined, ready for whatever destiny you have planned for them. They are ideal for the classroom, homework, studying, filing and contact information cards. A micro-perforated design makes them quick and easy to separate, so you can maximize your productivity at your workplace, classroom or home. Choose from the thousands of free templates and designs at avery.com/templates to add attention-grabbing text and graphics to both sides of your blank index card, and then print them out on your laser or inkjet printer for exceptional smudge and jam-free results. Convenient, easy-to-use and endlessly customizable, these unruled index cards are an unbeatable choice for an all-purpose printable card.
This card has optional greetings: Happy Mother's Day!, Happy Birthday!, Happy Spring!, Thinking of You!, Thank You!, Get Well Soon!, Happy Anniversary!, Happy Summer!, Happy Gardening!, Have a Nice Day!, Just Saying Hi!, Warm Wishes!, Congratulations!, Good Luck!, You're Invited!, Spring is in the Air!, Welcome Spring!, Happy Easter!, Happy Valentine's Day!, Happy Belated Birthday!, [No Caption]
This card has optional greetings: Happy Father's Day!, Happy Birthday!, Happy Belated Birthday!, Have a Great Summer!, Warm Wishes!, Happy Camping!, Go on an Adventure!, Gone Camping!, Enjoy the Great Outdoors!, Good Luck!, Happy Retirement!, You're Invited!, Let's Go Camping!, Thinking of You!, Thank You!, Get Well Soon!, Just Saying Hi!, Have a Great Day!, [No Caption]
What is the old saying…" something borrowed, something blue and a silver sixpence in her shoe?….I honestly didn't know about the "silver sixpence" line but in any case that was the inspiration for this wedding or bridal planner stickers printable. I used a soft blue and soft rose pink color theme plus a few watercolor rose and magnolia images. I hope you like it.
"Thank you for your purchase! I hope it gives you everything you wanted. While all digital sales are final, and returns or refunds are not allowed after purchase, I am ALWAYS available should you have any questions or concerns. Please keep in mind that computers and printers may show colors differently and I cannot guaranty color matching. Also keep in mind that this product is for your personal, non-commercial use. You may [if a business/planner form or a product you will allow limited sharing] share this product with _____. All rights to this product remain the property of (name/company name]."
Every once in a while I'd add a new printable to my store - just single page downloads that I actually hobbled together with Picmonkey. Creating printables in Picmonkey was painstakingly slow work since it's really supposed to be used for graphic editing and creation, but at the time, Picmonkey was the only program I knew. *Fun fact, I'm a self-taught graphic designer and all I use is Picmonkey!
*If you post this on the internet, please give credit to Vintage Glam Studio & link back to my blog (www.vintageglamstudio.com), so others can obtain the resources. Pinterest, Twitter and Facebook are great social media sharing platforms, it's the sharing without a link back that can be a problem. If you use this printable on Instagram, tag me with #vintageglamstudio or @vintageglamstudio. Thanks!
Some initial news sources characterized the decision as ruling that the song was in the public domain,[43][44] but the decision did not go so far, holding only that Warner/Chappell did not prove they owned the copyright.[41] However, because there are no other claimants to the copyright, and the copyright to the melody long ago expired,[45] the plaintiffs suggested that the song was de facto in the public domain.[41] Also, the judge ruled that the song was not copyrighted by Summy Co., who had written in the song book, "Special permission through courtesy of the Clayton F. Summy Co." Since there was no evidence Summy Co. had copyright on the song, the song is still considered to be in the public domain.[46]
One of Sarah's biggest freelance jobs so far has been designing the Brilliant Business Planner! She landed this job by seeing a need for her service and reaching out to Sarah and Beth Anne. This is a great lesson for any entrepreneur — it never hurts to ask. The worst thing that can happen is that someone says no, but on the flip side you could land a great job and a great partnership!
We want you, your friends and family to have 1 Happy Birthday/Feliz Cumpleaños. You can email the Happy Birthday song to your friends, burn the Happy Birthday song to a CD, put the free Happy Birthday song on your ipod or listen to the personalized Birthday song on your computer. Or sing the Happy Birthday song yourself. No, sing louder. Let everyone decide who's better, you or the real singer!
Have I made my point yet? They are not kidding when they say bioDIVERSITY. There is literally every form of living thing available to choose from. Butterflies and water fowl, more frogs, turtles and lizards than I ever knew existed. Weird fancy pigeons, big and small game animals…it just goes on and on and on. The only bad part is you can't search for specific images but hey, it's free!

redpajama_set_name: RedPajamaCommonCrawl


They may bring a large tree into the house and set it up in a prominent place and cover it with lights and decorations. Bizarre as this may seem to you, it is an important ritual for your humans, so there are some things you need to know: Don't pee on the tree - don't drink water in the container that holds the tree. Mind your tail when you are near the tree-if there are packages under the tree, even ones that smell interesting or that have your name on them, don't rip them open - don't chew on the cord that runs from the funny-looking hole in the wall to the tree.
Likewise, your humans may take you visiting. Here your manners will also be important: Observe rule number 4 for trees that may be in other people's houses. Respect the territory of other animals that may live in the house - tolerate children - turn on your charm big time.
A big man with a white beard and a very loud laugh may emerge from your fireplace in the middle of the night. DON'T BITE HIM!


Discussion in 'Mac Pro' started by zarf2007, Jun 24, 2016.
It is a bad deal, i think. It's a Custom 5.1 and for that money it doesn't have the value. Get a 4 cores 4.1 and then upgrade the cpu tray when you need that extra power.
You can get a single CPU genuine 5.1 Mac Pro from CEX for around £400 and upgrade it yourself.
It's an ok deal although could be £50 cheaper as the case has a lot of scratching. If it was me I'd get a 4,1, flash it and upgrade the processor myself. You can get good deals on a 4,1 if you look hard enough.
If you then want to upgrade to a dual cpus its best to just sell your single cpu Pro and buy one with dual CPUs already fitted.


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San Jose Sharks finish highway journey towards Columbus Blue Jackets
The Sharks had mixed feelings about their position after the first 20 games of the season. They did enough good to get 10 wins, but also knew they couldn't hover at the 0.500 percentage point for long and are still hoping to stay in the playoff chase.
They clearly knew the importance of the five-day road trip they were about to begin – and they responded in the same way.
The Sharks have won three out of four games this week and were in a playoff position prior to the start of the NHL games on Saturday. The Sharks (13-10-1) end their trip against the Blue Jackets in Columbus on Sunday with a chance to maintain that momentum before starting a seven-game home game next week.
"We had a kind of team meeting every three months to discuss where we stand and where we need to take the Christmas break to give ourselves the chance to run a run in the second half." "Said Sharks trainer Bob Boughner.
"It was important to put ourselves in that position and we knew we were going to get out of this road trip and not come back with a win or two. We had to get our fair share of points. "
The Sharks knew what their immediate schedule was after completing a four-game home stand on Nov. 26. They had five street games in eight days, followed by three games in five days at the SAP Center.
But after their home game against Joe Pavelski and the Dallas Stars on December 11th, the Sharks saw their schedule loosen up a bit, with just four games in the next 12 days before Christmas.
Getting out of the busy two week trail while your head was still above the water would be crucial – and they had quite a bit to do. The Sharks were two points behind a playoff spot, finishing 11th in the conference after losing 4-1 to the Toronto Maple Leafs on November 26th.
Before the games on Saturday, they had the first wildcard place in the Western Conference and were three points behind third place in the Pacific Division.
ELMONT, NEW YORK – DECEMBER 02: Erik Karlsson # 65 of the San Jose Sharks scores on 02. The Haie defeated the Islanders 2-1 in overtime. (Photo by Bruce Bennett / Getty Images)
"We talked before the road trip about not wanting to stay at 0.500," said Sharks goalkeeper Adin Hill. "You can see how close the championship lead is. Every point is huge at the moment. "
The Sharks' 3-1-0 mark on the road trip enabled them – at least temporarily – to get past Vegas, Colorado, Nashville, and Dallas, and put some distance between themselves and Los Angeles.
The Sharks are now 8-6-0 away from home. They haven't set a winning road record since the 2018-19 season when they went 21-16-4.
"The guys who went through it and stayed here are fed up with losing and trying to find new ways to develop," said Sharks defender Erik Karlsson, "and then become the team that does You want to be. " . "
The main reasons the Sharks have been successful away from home this week are goalkeeping and team defense.
So far, the Sharks have allowed four goals in four games on this trip. From November 28 until the end of the games on Friday, only the New York Rangers allowed fewer goals on average (every second game).
Adin Hill and James Reimer combined made a stellar savings percentage of 0.965.
The Sharks have, on average, limited their opponents to fewer than 29 shots on goal per game – the fifth best in the NHL this week. Using a Natural Stat trick, they gave the Rangers 15 high-risk chances in a 1-0 loss at Madison Square Garden on Friday, but left a total of 25 high-risk chances in wins against Chicago, New Jersey and the New York Islanders.
Together with the terrific performances of Timo Meier (four goals, two assists) and Logan Couture (four assists) as well as two points each from Karlsson, Noah Gregor, Rudolfs Balcers and Alexander Barabanov, the ingredients for a successful road trip are there.
"It will be nice when we come home in December," said Karlsson. "We cleared a few big road trips and did well on them too.
"It was a challenge, but at the same time we are on the right track and we had a lot of fun."
This is the Sharks' final five-game road trip of the season as they have three four-game road trips left after Sunday. The Sharks would love to end it right after losing the final of their last two 5 game trips.
"We're going to play either 4-1 or 3-2," said Couture, "so it's a big swing game for us."
The Grinch, The Nutcracker, Mannheim Steamroller and Extra – NBC 7 San Diego
It is Nationwide Cookie Day – NBC Los Angeles


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Chesias angeri is een vlinder uit de familie spanners (Geometridae). De wetenschappelijke naam is voor het eerst geldig gepubliceerd in 1919 door Schawerda.

De soort komt voor in Europa.

angeri
Dier uit het Palearctisch gebied

redpajama_set_name: RedPajamaWikipedia


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Alt Diesdorf 41, Am Denkmal 1–5 ist die Bezeichnung des Denkmalverzeichnisses für einen denkmalgeschützten Platz im Magdeburger Stadtteil Diesdorf in Sachsen-Anhalt.

Lage
Der Platz Am Denkmal befindet sich im Ortszentrum von Diesdorf, östlich des Angers. Auf dem Platz steht das Kriegerdenkmal Diesdorf. Zum Denkmalbereich gehören auch die als einzelne Baudenkmäler ausgewiesenen Gebäude Alt Diesdorf 41, Am Denkmal 4, die St.-Eustachius-und-Agathe-Kirche, das Pfarrhaus Diesdorf sowie ein Gedenkstein für die im Ersten Weltkrieg gefallenen Mitglieder des Diesdorfer Turnvereins.

Architektur und Geschichte
Die den Platz umgebende Bebauung besteht aus großen Wohnhäusern, die vor allem aus der Mitte des 19. Jahrhunderts stammen, und aus großen Bauernhöfen. Die Hofanlagen samt ihrer Wohngebäude gehören zu den größten des Orts und gehen in ihrer Bausubstanz bis auf das frühe und mittlere 19. Jahrhundert zurück. Die Fassaden sind jedoch jüngeren Datums und zeigen Gestaltungen des Spätklassizismus und des Jugendstils.

Im örtlichen Denkmalverzeichnis ist der Platz unter der Erfassungsnummer 094 82534 als Denkmalbereich verzeichnet.

Literatur
 Denkmalverzeichnis Sachsen-Anhalt, Band 14, Landeshauptstadt Magdeburg, Landesamt für Denkmalpflege und Archäologie Sachsen-Anhalt, Michael Imhof Verlag, Petersberg 2009, ISBN 978-3-86568-531-5, Seite 41.

Weblinks

Einzelnachweise

Kulturdenkmal in Magdeburg
Platz in Sachsen-Anhalt
Platz in Europa
Verkehrsbauwerk in Magdeburg


A warming and uplifting blend of organic ginger, galangal & golden turmeric.
Three Ginger tea is everything a ginger tea should really be – rich, spicy and stimulating. Made using three delicious roots from the ginger family to create the fullest flavour, it will help settle digestion whilst warming and uplifting your spirit.
Ginger has been used for to support health for thousands of years. At Pukka we create unique blends to harness this incredible potential.
ingredients: Ginger root (51%), galangal root (28%), licorice root, turmeric root (4%), natural ginger extract.


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Will Phones and YouTube Accelerate 3D Adoption?
If there is one place where 3D could have an impact, it's on mobile phones.
Fritz Nelson
Vice President, Editorial Director InformationWeek Business Technology Network
The future success of 3D is uncertain. But if there is one place where 3D should have an impact, it's on mobile phones.
For several weeks, I've been using the HTC EVO 3D, available now from Sprint, and also an early version of the LG Thrill, expected to be available later this month from AT&T. I'm not ready to jump on the 3D bandwagon yet, but these phones are turning out to be an instructive experimental platform for both consuming 3D content -- from 3D games to 3D movies -- and for creating it.
The phones are only a part of the equation. I'll provide a bit more depth on them in Part 2 of this 3D series. First, some of the market challenges for 3D, and then some details on what Google/YouTube is doing with 3D.
3D's Chicken/Egg Problem
A report from NPD's DisplaySearch estimates that about 3.2 million 3D TVs would be sold in 2010 , but the prospect for 2014 was 90 million. That represents more than 40 percent of flat panel TVs shipped. These numbers appear to be based on taking manufacturer exuberance with a little consumer temperance.
Now that putting 3D capability into TVs is only a fractional added expense (the cost of glasses aside), 3D TVs now run roughly $150 more than your everyday HD TV. Whether or not people actually care enough to consume 3D content is another matter.
New technology always faces the chicken-and-egg conundrum. Creating the content is expensive, while not enough people have the technology to consume it. The technology to consume it is expensive, and there's not enough content to justify spending the extra money. Prices go down with higher uptake. Early adopters often get burned buying emerging technology; eventually something even better comes along, often at a lower price.
These dynamics plagued HD, yet the economics of HD content and technology make sense today. Natural adoption drove those dynamics, and that adoption happened because it was pretty easy for viewers to see the stunning quality difference between standard definition and high definition content. The impact was immediate.
Contrast that with 3D, which seems like a gimmick. Done too much, it can be distracting, or worse.
3D faces the same economic challenges that HD did, but it faces some additional hurdles. First, creating 3D content is different. For HD, it was just a change in equipment. 3D also requires different equipment, but shooting 3D content requires thinking creatively about how to exploit that third dimension. That is to say, the artists must adapt, learn new skills, and experiment. 3D images often contain more data than HD content, which impacts data storage and content rendering time for content creators.
Second, not every consumer enjoys 3D content. For many, it induces dizziness, sometimes leading to nausea. For others, it's unwatchable. For some people who wear glasses, it creates even more complications. This downside has yet to be solved, and it affects a larger percentage of the population than anybody cares to admit.
Many of these 3D challenges are the result of how 3D content actually works. Presenting 3D content essentially involves interlacing two different images -- each with a different perspective -- rapidly presenting different images to each eye so the 3D workings are undetectable
There are different techniques for presenting images to each eye. Anaglyph and polarized glasses provide filters, alternately blocking what each eye can see. Active shutter glasses work differently, using darkness and light to present image perspectives. With all of these approaches, your brain puts these images together in a way that makes the content appear three-dimensional.
Parallax barrier technology doesn't require any glasses at all. Instead, while the same concepts apply, a filter built into the display contains uniform slits that sit behind the LCD and control what each eye sees. This is the technology that companies like HTC and LG are using in their smart phones.
YouTube 3D
As the technology gets better, we should start seeing more 3D content, but not just in the theatres or on special 3D TV channels.
In my attempts to find more chickens -- or is it eggs? -- I went to YouTube, thinking there had to be some 3D content there, and indeed there was. Turns out Google software engineer, Peter Bradshaw, has been spending part of his "20 percent time" thinking about DC. Google asks employees to think about innovative ideas about 20 percent of the time.
Bradshaw told me he got the idea for 3D on YouTube after the Monsters vs Aliens Super Bowl 3D glasses giveaway in 2009. Turning to YouTube, he found there was already a lot of 3D content, but he could only see some of it because his glasses were of the yellow and blue variety (there are several types). He wondered if YouTube could create a way for anyone to view 3D content regardless of the glasses, or even display type. So he set out to create a solution.
Now, on YouTube, you can select 3D as an option for your video search. Just type your topic into the YouTube search bar and then select the Filter & Explore option and select 3D.
YouTube's 3D channel is a curated channel of 3D content. Although Bradshaw says a great deal of the 3D on YouTube is user experimentation, the introduction of 3D-capable phones like the HTC EVO 3D and the LG Thrill are starting to enhance what people are uploading.
Originally Bradshaw rigged two Flip cameras together to create a video blog about the new 3D services on YouTube and, in fact, many budding video jockeys will do this in the absence of a 3D video camera, essentially mimicking the process and synchronizing the output from the two cameras in the final production.
Also, GoPro makes a 3D helmet camera for $99 (note to self: buy one!), and skateboarders and other outdoor types are starting to employ them; no word when skateboard riding English Bulldogs will get into the act. One company in Santa Barbara has even used a 3D camera to show surgeries, including one on a brain aneurism, Bradshaw said.
A YouTube spokesperson said that in the past three months, the number of 3D videos uploaded to the site has doubled.
YouTube has also created a way for you to select your 3D mode, choosing from the type of glasses (red/cyan, green/magenta, blue/yellow) and the type of 3D TV or monitor.
It also supports NVIDIA's 3D Vision, which is a combination of the company's software, glasses, graphics processor and certified displays.
YouTube built these features over time based on end user feedback (and critique), Bradshaw said. Admittedly, though, none of this is that easy to find yet. You have to know it's there.
On my LG Thrill device, many 3D items were rendered unusable. For example, the YouTube app doesn't provide the same options, and visiting YouTube through the browser simply provided a less-endowed, mobile version of the YouTube site. Of course you can select the desktop version of YouTube in the browser. Some of 3D videos I found on the 3D channel appeared as two separate images on the Thrill, although I did find many 3D videos that played correctly and worked fantastically. In other words, it's a work in progress. Let's hope someday these phones will see a YouTube 3D app.
In March 2011 YouTube even built Edit 3D, which is designed on the YouTube video editor code, but not directly connected to it. The main purpose of Edit 3D is to sync two video streams (it uses the audio tracks) to produce a 3D video. Obviously this doesn't apply to those who have 3D video cameras.
But really, YouTube just wants 3D to be simply another type of video. In fact, Bradshaw said, the company is committed to making 3D just another video tag type in the browser. Naturally, it is pushing WebM, which it calls an open video format. WebM is the outgrowth of Google's acquisition of On2, and part of the company's attempt to get the industry behind its video encoding platform (VP8).
Existing technical challenges will be overcome. Costs will go down. We've seen that trend in consumer electronics for dozens of years. Many enthusiasts believe that 3D technology will get better, and that the "ah-ha" moment will happen, just as it did for HD.
If 3D is to take off, one thing must happen: It must become accessible for more people. Part of that is cost (the cost of creating and consuming HD content is now incredibly low), but another part involves giving 3D content a cheap outlet. Regular smart phones will help (but not solve) the cost part. And companies like YouTube will become a great experimental outlet.
Stay tuned for Part 2 of this series, where I'll take a closer look at the HTC and LG 3D phones.
Fritz Nelson is the editorial director for InformationWeek, the Executive Producer of TechWebTV, and a contributing editor for BYTE.
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The unicorn knows it is a unicorn, but may hide it from the world.
The unicorn rejects the boredom and common things of the average life and strives for more.
The mass of humanity runs in herds like horses, seeking the bare necessities of existence like food and water, but the unicorn stands alone and runs toward rainbows. Instead of worrying over base things, the unicorn strives towards dreams that it uses to change the world.
The unicorn uses its weapons of strength, creativity and audacity to instigate change. The unicorn does not use the opinions and desires of others to decide what it should do, it goes by an inner compass defined by taste, decency, intelligence and whimsy.
While we do not think that unicorns should join together in herds, we do recognize that there is power in knowing that there are other unicorns out in the world. There is power in knowing that you are not alone.
Own that you are a unicorn and a new world will open up to you.


2 days: Theoretical component (day one) and practical component (day two).
On successfully completing the Senior First Aid training course, candidates will receive a Royal Life Saving certificate.
$165.00 (1 day) & $185 (2 days). This includes professional instruction, certification, and an emergency care booklet.
First Aid Training. On site, very efficient training with up to date procedures. Our workshop involves hands on scenarios and First Aid Management. Training is fun and very informative.
CPR has been made easier to manage – babies, infants and adults all require the same number of rescue breaths and compressions. Ration 2 breaths to 30 compressions.


come2coach started as a web-platform with the mission to bring together life long learners and ambitious individuals to share their passion. In my role as Product Manager (at Markenkonstrukt), I led a cross-functional team of 20 people (design, software development, external agencies, media production). This slides are outtakes of the mobile application storyboard. Over two years, I managed the continuous iteration of the web-, mobile platform as well as the online community channels (blog, social media, events – coachings). Credit for the Visual Design goes to my long-year colleague and Creative Director Ricardo Gantschnigg with whom I worked on come2coach from the first idea in 2014 towards the launch of the web-application beta in June 2015, until the official launch and mobile concept development.
I am going to publish more insights about the user experience strategy, business model and value proposition design, prototyping and testing.


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What's the Difference Between Viscose Bamboo and Polyester Underwear For Men?
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text:
Lallana sets the record straight over £25million move
Date:8th October 2014 at 12:30pm
Adam Lallana has hit back at claims he showed a lack of loyalty to former club Southampton, insisting he had to join Liverpool in the summer for the sake of his career, reports the Telegraph.
Lallana came under fire from disgruntled Southampton fans following his summer switch to Anfield, with some reports suggesting the midfielder had threatened to go on strike in order to force the move through.
But the 26-year-old insists that was not the case, as he looked to set the record straight during a press conference whilst on international duty with England.
"Knowing of that interest was attractive for me with Liverpool being such an historic club,'' Lallana explained. "The manager [Brendan Rodgers] was a big influence, and the way he played his football. Champions League football is another level, too. You want to be playing that and testing yourself. Leaving Southampton was a very, very hard decision but one I had to make.''
Lallana also called Matt Le Tissier to seek his advice – a man who stayed at Southampton for the duration of his career, despite interest from bigger Premier League clubs.
"I did speak to Matty and asked his advice,'' Lallana said. "He's a great man, and a good friend of mine, someone I'll always look up to. He texts me every now and again. He just said whatever decision I made, he'd support me.'
"It was me who made the manager [Ronald Koeman] aware, and Les Reed and Ralph [Krueger] on the board, that if there was an opportunity for me to leave and they could agree a fee, I'd like to leave."
Lallana also denied he left the club in the lurch, and disputes the claims he had threatened to go on strike.
"That's completely false. I didn't say I'd never play for the club again," he said.
"I made no secret that once I knew Liverpool's interest, that I asked the club if they could come to an agreement and that it would be my wish to leave and join Liverpool. I'm an ambitious person.
"At the age I was at my career, and with Mauricio [Pochettino] leaving as well, it just felt the right time for me to test myself. Being Liverpool, it was a great opportunity."
"I never ever wanted anything to get messy. I'm sad and disappointed that certain fans feel like that, but I understand why. They love Southampton. I'll always love Southampton. I'll always have special memories of the fans, the players and the people involved in the club.
"I have great respect for Southampton as a club. Without them, I wouldn't be where I am today. They gave me my chance when I was young. What we achieved was special: we were in League One and ended up finishing last season with our best number of league points. Part of me felt sad it had ended, but that's football. You move on.
"It's great to see them doing so well this season. People were talking that they'll find it difficult this season, but they've recruited well, brought in some great players and a good manager. So I'm really happy about that. They've moved on and are doing well. But I want to keep doing well in my career as well. People have to make decisions in life. I am sure there are lot of people who understand why I made that decision.
"When people move for big sums of money to a team that will always be challenging for silverware that comes with added pressure. I'm dealing with it and enjoying it. I hope it pushes me on a notch. Working with the players at Liverpool and playing in elite competitions is only going to improve my game.
"I could have stayed at Southampton until I retired and finished my career there. But at the age I was at, and with the opportunity I had, I couldn't have turned it down. I would have regretted it at the end of my career if I had. I hope in time the Saints fans will remember the memories we had down there and the successes we had in such a short space of time."


text:
Pena v. State
Ex parte Sheikh
Due process requires the prosecution to disclose exculpatory and impeachment evidence to the defense that is…
Ripley v. State
The State therefore has a duty to disclose favorable, material evidence.Pena v. State, 353 S.W.3d 797, 811-12…
317 Citing Cases
Full title:JOSE LUIS PENA, Appellant v. THE STATE OF TEXAS
Court:Court of Criminal Appeals of Texas
353 S.W.3d 797 (Tex. Crim. App. 2011)
Court of Criminal Appeals of Texas
holding that the defendant has the burden of showing that the prosecution withheld favorable evidence
Summary of this case from Hernandez v. State
See 25 Summaries
No. PD–0852–10.
Jose Luis PENA, Appellant, v. The STATE of Texas.
Scott Ramsey, Houston, for Appellant. Sue Korioth, Special Prosecutor, Dallas, Lisa C. McMinn, State's Attorney, Austin, for State.
HERVEY, J., delivered the opinion for a unanimous Court.
Appellant was indicted for possession of more than five but less than fifty pounds of marijuana. A jury found him guilty and sentenced him to life imprisonment as a habitual offender. The Waco Court of Appeals affirmed, rejecting Appellant's argument that Brady applied when the State failed to disclose to Appellant the audio portion of a videotape containing exculpatory statements that he made to police. Pena v. State, No. 10–03–00109–CR, 2010 WL 2306699, 2010 Tex.App. LEXIS 4389 (Tex.App.-Waco June 9, 2010) (op. on remand, not designated for publication). We granted Appellant's petition for discretionary review to determine if Brady is applicable to these facts. We will hold that it is, and we will reverse the judgment of the court of appeals.
I. FACTS
On September 27, 1998, Texas Department of Public Safety (DPS) Trooper Mike Asby pulled over a van driven by Appellant for a traffic violation. When Appellant exited the vehicle upon Asby's request, the trooper noticed that Appellant smelled of what he believed to be marijuana. Then, when he approached the van, Asby saw what he thought was freshly cut marijuana covering the cargo area of the vehicle. Appellant was subsequently arrested and transported to jail. These events were captured by a car-mounted camera that videotaped the stop, detention, and transport to jail. The plant material was seized and removed from the van. It was then sent to the DPS laboratory in Waco for testing.
Appellant was driving a rental van with Minnesota plates.
Appellant was indicted for possession of a usable quantity of marijuana in an amount of more than five pounds but fifty pounds or less, enhanced by three prior felony convictions. Pursuant to a Brady motion by the defense, the State, prior to trial, provided Appellant with what purported to be a copy of the videotape from Asby's car-mounted camera. Defense counsel was concerned that the tape had no audio, so he consulted with the State and was advised that there was no sound on the recording. Then, in March 2002, Appellant filed a motion requesting to independently examine and test the evidence. Unfortunately, this request proved to be impossible because the plant material was destroyed in March 2000.
The indictment alleged that Appellant did "intentionally and knowingly possess a usable quantity of Marijuana of more than five (5) pounds but less than fifty (50) pounds."
At trial, Asby was the first witness to testify. The State admitted the dash-camera's videotape before the jury as State's Exhibit 1 and played it during Asby's testimony. The jury was told that it contained no audio but was otherwise accurate. Asby explained that the lack of sound had resulted from either a battery malfunction or his failure to activate the recording device that he carried. Asby stated that he was trained to utilize such videotapes in court since they replicate "what happened out there that day."
Asby testified that, based on his many years of experience, he believed that the plant material in Appellant's van was freshly cut marijuana. Although he had never made another case from the seizure of fresh, green marijuana, Asby had observed the sheriff's department harvest marijuana and had seen growing fields of marijuana on ten or twelve occasions. He asserted that he had never "pulled anybody over that had something that smelled like marijuana that wasn't marijuana." Still, Asby acknowledged that Appellant vehemently denied that the material was marijuana:
Q. [STATE]: Okay. Have you ever discovered something that looked like marijuana that wasn't marijuana?
A. [ASBY]: I haven't. I have heard there are cases where people sell false narcotics. There was a sheet rock case in Dallas that made a lot of cocaine history, but I haven't personally ever. That's the reason we send it to the lab to have it analyzed to be sure it's what we think it is.
Q. All right. At this point what is the defendant telling you?
A. He told me that it wasn't marijuana.
Q. What did he tell you it was?
A. I don't remember. He said he was going to make some stuff out of it. I can't remember if he told me it was hemp or not, but he told me it wasn't marijuana.
Q. And based on all your experience was it marijuana?
Asby stated that Appellant tried to convince the officers of the legal nature of the plant material. Appellant told him that he had cut the plants on the side of the highway somewhere in Kansas and that he was going to make "leather goods," "trinkets," and "stuff" out of it. Asby testified, and the videotape confirms, that he spent considerable time discussing the plant material with other officers at the scene. Asby admitted that he may have even tried to call a chemist to verify Appellant's story and to ask if the chemist had "ever heard of something like marijuana, just hemp that is legal to have." Asby's confusion was clear during this line of questioning:
Q. [DEFENSE]: When the other officers come ya'll all go up and stand around the van, right?
A. [ASBY]: Correct.
Q. And ya'll just kind of looking in there? Is that what you're doing? I notice they didn't really climb in the van or do anything. Ya'll are just standing by the door? What are ya'll doing?
A. As I said before, this was an unusual case because normally drug trafficking goes north, not south. And we were pretty amazed that this load of marijuana was coming south. And I again questioned them, I said well, he says it's not marijuana. I said—and I knew that there was a substance called hemp and I was asking them. At some time I may even tried [sic] to call a chemist and say is there any validity to this story. And I asked them you ever heard of something like marijuana, just hemp that is legal to have.
Q. And so ya'll were talking about this, trying to make a decision whether it really was marijuana or not, right?
A. I knew it was marijuana. I didn't know if there was any kind of legal—any kind of legal marijuana you could have according to what Mr. Pena said.
Q. So let me try to clarify a little bit there with you. Then there is legal marijuana and not legal marijuana or there is hemp that is legal and illegal marijuana which is cannabis sativa?
A. I don't know. That's what we were talking about.
Q. Okay. So you really were just—you just didn't know what it was then really did you?
A. I knew it was marijuana. In my experience it smelled like marijuana, it looked like marijuana, it felt like marijuana.
Although Asby remembered Appellant's assertions that the plant material was not marijuana, he could not recall if Appellant had requested testing of the plant material.
Q. [DEFENSE]: And, in fact, he also requested that it be tested didn't he?
A.[ASBY]: Is that in my report? I don't remember that. I knew I was going to have it tested.
Q: And he told you he wanted it tested, too, didn't he? ... He informed you that he wanted not only to have ya'll test it but that he wanted to test it, too, didn't he?
A: That could be correct. I don't remember.
DPS chemist Charles Mott testified next. He stated that he analyzed the plant material submitted by Asby and determined that it was marijuana weighing 23.46 pounds. Mott's lab report, showing the results of his testing, was introduced into evidence as State's Exhibit 14. Mott explained that this conclusion was based on a microscopic visual inspection and the presence of the chemical THC in the plant. He also testified that hemp rope would not necessarily, but could possibly, test positive for THC "but that you would have a rope and you wouldn't be looking at it for marijuana...."
Q. [DEFENSE]: When you test this you only test to see if there is any THC, not any percentile or quantity or anything else, right?
A. [MOTT]: That's right. We do not quantitate the THC in the marijuana.
Q. So if you tested hemp rope it would still test and be positive for THC wouldn't it?
A. Not necessarily, sir. Because hemp rope, whenever the marijuana plant matures you have the central stalk going up. And from this central stalk is where the hemp rope—where you get the hemp rope. And by the time you make the rope, you take that fibrous material to make the rope, well, any of the THC is probably gone in the washing and so forth.
Q. So it would have to be washed out, physically removed, right?
A. I would think so, sir. If—in the stalk it is probably not a whole lot present. It's mainly in the leaves and the flowering top.
Q. But there is some in there isn't there?
A. Yes, sir, it is.
Q. And so if it wasn't washed, well, it could be possible it would test positive wouldn't it?
A. On the stalk it's a possibility, yes, sir.
Q. And what I'm talking about, if the rope material, the fibers weren't washed well enough?
A. You mean the reason? I doubt if you would find it in the rope. But if you had some stalk you could probably find THC in stalk [sic].
Q. And so if the manufacturing process, if it wasn't washed well and removed from it then it's possible it would show up wouldn't it?
A. It's possible. But you would have a rope and you wouldn't be looking at it for marijuana, sir.
Mott testified that the plant material was destroyed in March 2000, about a year after its analysis and before "the defense was interested in testing this and having an independent lab test." Mott stated that the computer records reflected that a destruction order was received, but he conceded that he did not know who sent the alleged order for destruction. No one could say who authorized its destruction. Not only was the evidence destroyed, but the file containing the original worksheet, reports, letters, and submission forms was also destroyed or lost. It was discovered that the evidence was destroyed only after a motion was filed to examine and test.
Testimony showed that no destruction order was signed by the court, the prosecutor was not aware of this action, and Asby did not recall submitting such a request.
The parties rested after a State's expert testified about the street value and quantity of the amount of marijuana involved here.
During closing jury arguments, the State claimed that the defensive theory that the plant material was not marijuana was a "smoke screen," and it attacked the credibility of Appellant's assertions related to his defense: "What I just heard is what we used to call trickery when I was on the used car lot." The State further argued that the defense did not even request testing of the plant material until after it knew that the plant material had been destroyed: "You know what the defense is going to be. We want to test the marijuana. We want to test the marijuana. That wasn't until 2002."
It was discovered, following closing arguments and after the jury was sent to begin deliberations, that a portion of the videotape (State's Exhibit 1) had audio. The defense pointed this out to the trial court:
The record indicates that the videotape was played for the jury up to the point where Asby begins to drive away from the scene. It is shortly after that moment that the audio portion begins.
[DEFENSE]: Also, in reference to the exhibits, Whitney and I noticed—Whitney Smith, prosecutor, and I noticed when we were finishing up that tape and quickly cut it off that all of a sudden some sound came on when they were driving down the road and in the vehicle. The tape that I had, that Mr. Smith made for me, did not have any understandable words that we began to hear there. Whitney and I talked about this and we just want to take a few minutes right now and look and listen to the very end of that tape. I don't know that it had been rewound.
THE COURT: Help yourself.
[DEFENSE]: In case we have to delete that portion out of it if they ask for it.
[STATE]: There is no objection from the State to delete that part because I only gave him stuff that didn't have sound to it.
[DEFENSE]: We don't know what it says.
THE COURT: Let him listen to it.
The record does not show whether anything further occurred with the audio portion at trial.
The jury never heard the audio portion of the videotape. At least one juror was initially persuaded that Appellant's claims were reasonable; a note sent back by the jury foreperson questioned what happened if the jury could not agree and indicated the current vote was 11–1. Later, the jury found Appellant guilty of felony possession of marijuana, affirmed the enhancement paragraphs, and sentenced him to life imprisonment.
Appellant, through counsel, filed a motion for new trial, which included eight separate grounds for a new trial. Among other issues, the motion contended that trial counsel rendered ineffective assistance, and one of the related allegations was that "counsel was ineffective for failing to present to the jury the exculpatory audio portions of the videotape." At the hearing on the motion, the primary focus was on the audio portion of the videotape. In his opening statement, motion counsel raised the possibility that the State withheld that evidence. Trial counsel testified that he was advised by the prosecutor that the videotape recorded by the arresting officer had no audio, and motion counsel explained, "We assume there will be a record and if the record does reveal that there was material on the tape that wasn't played to the jury and the evidence was exculpatory, then there are several possible issues that could be raised on appeal."
Appellant testified at the hearing that he knew the audio portion of the videotape was not played for the jury. He further stated that, after the jury was sent to deliberate, he was in the courtroom when defense counsel pushed "play" on the video player, and they heard audio on the tape. Appellant explained that the audio portion of the tape was where "I'm telling [the trooper] that it's not marijuana and that is it going to be tested and he assured me that it would be, on the audio."
The prosecutor took the stand last. He asserted that he did not hold anything back from the defense, and he remembered hearing the audio after closing arguments. The trial court subsequently denied the motion for new trial.
II. WACO COURT OF APPEALS
On appeal, Appellant claimed that the videotape provided to him by the State had no audio and that the State's failure to disclose the audio portion of the videotape violated Brady. Pena, 2010 WL 2306699, 2010 Tex.App. LEXIS 4389. The Waco Court of Appeals rejected this argument. It decided that Appellant knew of the existence and content of his statement in the videotape since he was there when it was made. Id. at *1, 2010 Tex.App. LEXIS 4389, at *2–3. " Brady does not apply to the State's failure to disclose a statement the defendant made to law enforcement officials" under these circumstances. Id. at *1, 2010 Tex.App. LEXIS 4389, at *3.
The Waco Court of Appeals initially sua sponte reversed Appellant's conviction, finding that the Texas due course of law provision was violated by the State's destruction and loss of both the evidence seized and all files related to this evidence, which denied Appellant the opportunity to test this material as he had requested. Pena v. State, 166 S.W.3d 274 (Tex.App.-Waco 2005). It did not reach Appellant's remaining points of error. We granted discretionary review and reversed the court of appeals because the due course of law issue had not been raised by the parties. We remanded to allow parties to brief this issue. Pena v. State, 191 S.W.3d 133 (Tex.Crim.App.2006). After additional briefing on the requested issues, the Waco court issued a second opinion affirming that error was preserved at the trial level and that Texas due course of law offered greater protection than federal due process. Pena v. State, 226 S.W.3d 634 (Tex.App.-Waco 2007). We granted review and again reversed because the separate Texas constitutional due course of law claim was not preserved. Pena v. State, 285 S.W.3d 459 (Tex.Crim.App.2009). We remanded the case for consideration of Appellant's remaining points of error.
We granted Appellant's petition for discretionary review challenging the court of appeals's holding. Specifically, Appellant's ground for review stated the following:
Whether the court of appeals erred in concluding that the due process protections afforded under Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), did not apply when the State failed to disclose or provide to Appellant, after specific request, the audio portion, containing exculpatory statements made by Appellant to police, of a videotape used by the State before the jury.
III. ARGUMENTS OF THE PARTIES
A. Appellant's Arguments
Appellant contends that the State's suppression of the audio portion of the tape, despite his specific request for it, and the State's denial that it existed violated his due process right to a fair trial as mandated by Brady.
Appellant argues that the court of appeals incorrectly determined that Brady did not apply when it misapplied Havard v. State, 800 S.W.2d 195 (Tex.Crim.App.1989). The court failed to consider the factual context of this case, which is clearly distinguishable. Here, the statements were recorded and preserved by law enforcement officers, who then maintained exclusive possession and control over the evidence, and years later, there are no other means available to produce that exact evidence. Also, Appellant was not aware that his arrest statements had been recorded and preserved, and he was erroneously advised by the State that his statements were not in existence, as was the jury.
In addition, Appellant maintains that the State used the tape to its advantage and denied that a portion of it existed in order to mislead Appellant and the jury. Appellant notes that Asby's lack of memory and the State's failure to disclose allowed the prosecutor to argue that Appellant was engaged in a smoke screen or trickery and that he did not request testing until after he knew that the evidence had been destroyed.
Appellant asserts that his claim satisfies the requirements of Brady. First, the State failed to disclose the audio portion of the videotape. Second, the audio was favorable because it supported his lack of culpability. Third, Appellant argues that the audio evidence was material because the evidence that he requested for testing from the beginning might have allowed a different approach by the defense. They could have explored impeachment and better focused on mistake of fact, even if the substance was marijuana. Finally, Appellant contends that the audio would have been admissible under Rule of Evidence 107, which allows for the introduction of other recorded statements on the same subject to explain acts previously admitted.
B. State's Arguments
The State responds that Appellant failed to preserve the Brady complaint for review because he failed to make any objection or request to the trial court regarding the audio recording. The State notes that Appellant was aware of the audio portion before the jury returned a verdict, but he made no Brady claim at that time. Nor did he request to re-open the evidence, move for a mistrial, or request that the trial court refer the tape to the jury. Further, Brady was not mentioned in the motion for new trial.
The State argues that, even if Appellant did preserve the issue for appeal, Brady is inapplicable because the audio recording was of Appellant's own comments to police. Havard, 800 S.W.2d at 204–05. The State asserts that Brady is not implicated when the item at issue is the defendant's own statement. And, in any event, Asby testified regarding those statements, meaning that Appellant was placed on notice.
Finally, the State contends that Brady does not apply because the audio portion of the videotape would not have been admissible evidence. The State argues that Appellant's statements were exculpatory, self-serving hearsay, which would have been inadmissible at trial. If Appellant wanted to place his statements before the jury more forcefully, Appellant could have testified to them himself.
C. Appellant's Reply
Appellant responds that his Brady claim was preserved for appellate review. Appellant notes that he did not become aware of the audio portion until after the jury had retired to deliberate. At that juncture, Article 36.02 of the Texas Code of Criminal Procedure precluded the admission or introduction of the evidence, and the defense had not had the opportunity to analyze this portion of the tape to formulate either a Brady objection or a motion for mistrial. In addition, Appellant contends that, although the written motion for new trial did not address Brady specifically, the hearing on the motion did address the failure of the State to provide this material evidence, so the court was advised of the Brady violation claim.
IV. PRESERVATION OF ERROR
Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate Procedure, which provides that, to preserve error, a complaint must be "made to the trial court by a timely request, objection, or motion that ... state[s] the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex.R.App. P. 33.1(a)(1)(A). The record must also show that the trial court "ruled on the request, objection, or motion, either expressly or implicitly " or "refused to rule on the request, objection, or motion, and the complaining party objected to the refusal." Tex.R.App. P. 33.1(a)(2) (emphasis added).
A complaint is timely if it is made "as soon as the ground of objection becomes apparent." Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App.1991). Regarding its specificity, the objection must simply be clear enough to provide the judge and the opposing party an opportunity to address and, if necessary, correct the purported error. Ford v. State, 305 S.W.3d 530, 533 (Tex.Crim.App.2009). No "magic words" are required. Id. An objection is considered in the context in which the complaint was made and the parties' shared understanding of the complaint at that time. Lankston v. State, 827 S.W.2d 907, 911 (Tex.Crim.App.1992).
"Straightforward communication in plain English will always suffice." Lankston v. State, 827 S.W.2d 907 (Tex.Crim.App.1992). "The standards of procedural default ... are not to be implemented by splitting hairs in the appellate courts. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Id. at 909.
In this case, defense counsel discovered the audio portion of the videotape after the completion of final arguments and after the jury had retired to deliberations. At that time, defense counsel was not aware of the substance of the audio—"We don't know what it says." Thus, the grounds for an objection had yet to become apparent. Additionally, Appellant could not then re-open the case in order to get the audio into evidence because doing so would have been contrary to Article 36.02 of the Texas Code of Criminal Procedure, which states, "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." (Emphasis added). The introduction of evidence after the conclusion of closing arguments is prohibited. Williams v. State, 35 Tex.Crim. 183, 32 S.W. 893, 894 (1895); cf. Peek v. State, 106 S.W.3d 72, 74 (Tex.Crim.App.2003).
After he was found guilty and sentenced, Appellant filed a motion for new trial, asserting, inter alia, that defense counsel was ineffective for failing to attempt to place the audio portion before the jury. The motion did not explicitly present the State's failure to provide this evidence as a Brady violation, but the hearing on the motion did address the failure of the State to provide the material, exculpatory evidence. In fact, the audio portion was the primary focus of the hearing.
In his initial argument, motion counsel raised the possibility that the State withheld the evidence:
The second thing is—is that there was a videotape that had an exculpatory portion in it. From what we have been told, there's a videotape that has an exculpatory audio portion of it where, after his arrest, the defendant asked for the drugs to be tested and the officer told him the drugs would be tested. This video—this audio portion of the videotape was never played to the jury....
When trial counsel took the stand, he stated that he could not remember what was included in the audio recording because he had not reviewed his notes. However, if Appellant had requested that the plant material be tested, that would be consistent with the defense's position during trial, and it could be exculpatory. Trial counsel also testified that he was advised by the prosecutor that the videotape had no audio, when in fact it did. After hearing this testimony, the court objected that this issue was primarily speculation in the absence of a completed record. Motion counsel responded,
The court reporter had not yet completed his record of the trial.
[W]e intend to offer evidence that what was on the tape that was not played to the jury was the defendant's assertion to the trooper ... "It's not marijuana" and asking the trooper to test it and the trooper assuring him that it would be tested. We believe that's on the tape and I don't have a copy of the tape but I've heard a description of it, so that's what we believe is there. We believe that this defense counsel didn't have access to the information prior....The court interrupted this argument, but counsel then clarified his position:
Well, because we assume there will be a record and if the record does reveal that there was material on the tape that wasn't played to the jury and the evidence was exculpatory, then there are several possible issues that could be raised on appeal. Was there— Later, the prosecutor cross-examined trial counsel regarding the videotape, specifically its audio. Appellant testified that the audio portion was not played for the jury and that, when the videotape was played after the jury was sent to deliberate, the audio portion began where "I'm telling [the trooper] that it's not marijuana and that is it going to be tested and he assured me that it would be, on the audio." Finally, the prosecutor testified on his own behalf that the State did not hold anything back from the defense.
Overall, the record of the motion for a new trial hearing reflects that the Brady issue was preserved for appeal. Although the word " Brady" was not specifically used, the trial court and the State were both aware of the purported error. The State's failure to provide the audio recording dominated the motion hearing, and all parties (the court, the State, and the defense) made references to "material" and "exculpatory" evidence as well as the possible appellate implications if the facts alleged by Appellant were proven to be true. The Brady issue is sufficiently clear from the record, and when the trial judge denied Appellant's motion for new trial, he was implicitly ruling on the Brady claim. See, e.g., Montanez v. State, 195 S.W.3d 101, 104–05 (Tex.Crim.App.2006); Rey v. State, 897 S.W.2d 333, 335–36 (Tex.Crim.App.1995). The issue was properly preserved.
V. BRADY CLAIM
The Supreme Court in Brady v. Maryland held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. The purpose of this rule was to avoid an unfair trial of the accused: "A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant." Id. at 86–88, 83 S.Ct. 1194. The Supreme Court later explained that Brady essentially created a federal constitutional right to certain minimal discovery. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
However, "[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).
We have held that to find reversible error under Brady and Bagley, a defendant must show that
(1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith;
(2) the withheld evidence is favorable to him;
(3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002). Additionally, we require that the evidence central to the Brady claim be admissible in court. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App.1993).
Here, the evidence at issue is the audio portion of the videotape (State's Exhibit 1). A review of the videotape reveals that the audio portion began shortly after Appellant was placed in Asby's vehicle, and it continued until Appellant was taken into the police station. Initially, Asby informed Appellant of his Miranda rights. Then, the trooper and Appellant discussed a variety of topics including why Appellant was traveling through Oklahoma, why the van was dirty, where he obtained the plant material, what he was going to make out of the material, and how he got the idea to do so. Significantly, Appellant asked Asby how the police would go about testing the plant material. He expressed that he was not worried about the results because he knew that it was not marijuana, and Asby assured him that, if testing indicates that it was not marijuana, Appellant would be released. Appellant also stated that he did not know that it was illegal to possess the relevant plant material, and he would have dumped it if he had known of that fact.
A. The State failed to disclose evidence
Brady held that the State has a constitutional duty to disclose to a defendant material, exculpatory evidence. The scenarios to which Brady applies "involve[ ] the discovery, after trial of information which had been known to the prosecution but unknown to the defense." Agurs, 427 U.S. at 103, 96 S.Ct. 2392. Consequently, " Brady and its progeny do not require prosecuting authorities to disclose exculpatory information to defendants that the State does not have in its possession and that is not known to exist." Hafdahl v. State, 805 S.W.2d 396, 399 n. 3 (Tex.Crim.App.1990). Similarly, the State does not have such a duty if the defendant was actually aware of the exculpatory evidence or could have accessed it from other sources. See, e.g., Harm v. State, 183 S.W.3d 403, 407 (Tex.Crim.App.2006); Havard, 800 S.W.2d at 204–05; Jackson v. State, 552 S.W.2d 798, 804 (Tex.Crim.App.1976).
The State failed to disclose the audio portion when the videotape evidence was initially requested by defense counsel and again failed to disclose it after a second inquiry by the defense that addressed the lack of sound on the copy previously provided. Both prosecutor and defense counsel confirmed that no copy with audio was tendered.
The audio portion of the videotape was (or at least should have been) known to the State. Even if the prosecutor was not personally aware of the audio recording, the State is not relieved of its duty to disclose because "the State" includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement connected to the investigation and prosecution of the case. Ex parte Reed, 271 S.W.3d 698, 726 (Tex.Crim.App.2008). Here, State's Exhibit 1 contained audio. The videotape was created and preserved by law enforcement officers, agents of the State, who then maintained exclusive control over the evidence.
Additionally, the audio evidence was unknown to Appellant since the State consistently represented that the videotape contained no audio. The Waco Court of Appeals relied on Havard v. State to hold that Brady is not invoked in this case because the evidence at issue is Appellant's own statements. However, the court erred in so holding because this case is distinguishable from Havard and its progeny. In Havard, the State called a police officer to testify, and in preparation for his cross-examination, the defendant was given an offense report prepared by that officer. Havard, 800 S.W.2d at 204. The report included an exculpatory statement made by the defendant to law enforcement officials. Id. The defendant argued that a Brady violation occurred when the State failed to provide him with his prior statement. Id. We disagreed, holding that Brady did not apply because the defendant "knew of the fact that he made a statement to police and the content of that statement." Id. at 204–05. We explained that he knew of the statement's existence and its content "as a matter of logic" since he was present at the time that he made it. Id. at 204. We also emphasized that a defense exhibit presented at trial, the script of a broadcast on a local radio station that included the defendant's statement, gave him notice prior to trial of his statement. Id. at 204–05.
Whereas the evidence central to Havard was a specific exculpatory statement made by the defendant, the evidence at issue here is the entire audio portion of the videotape. The audio replicates the full exchange between Asby and Appellant that occurred while they traveled to the police station (including, for example, the recitation to Appellant of his Miranda rights and Asby's assurances that the plant material would be tested), as well as other sounds of Appellant's arrest and transport. Law enforcement, unbeknownst to Appellant, recorded the videotape, and the State denied outright that the videotape had audio. So although Appellant might have known of his exculpatory statements, as he maintained all along that he had requested testing of the plant material and continuously denied that it was marijuana, he was unaware that an audio recording existed that captured those very remarks, among others.
Further distinguishing this case from Havard, the audio portion of the videotape was the only piece of evidence that substantiated Appellant's defense. Asby testified to much of his interaction with Appellant, including Appellant's claims that the plant material was not marijuana, but significantly, he could not recall whether Appellant requested that it be tested. And, in addition to denying that an audio portion existed, the State took a position contrary to Appellant's defense, arguing that he had not requested testing of the plant material prior to its destruction. Hence, Appellant was unaware of the only audio evidence that was proof that he actually requested testing at the time of his arrest.
This case is also distinguishable from Hayes v. State, 85 S.W.3d 809 (Tex.Crim.App.2002), which relies on Havard for the proposition that there is no duty to disclose material of which the defendant already has knowledge. See Hayes, 85 S.W.3d at 815 ("In Havard v. State, this Court held that the Brady rule did not apply when the appellant was already aware of the information."). In Hayes, the defendant objected because the State did not disclose favorable punishment evidence or a letter that he had written to his mother-in-law, in which he expressed remorse for what he had done. Id. at 814. We held that Brady was not controlling because the defendant wrote the letter; therefore, he was aware of the existence and contents of the letter. Id. at 815. In contrast to Hayes, Appellant was not "already aware of the information" that there was an audio portion of the videotape, which documented his statements and the surrounding events and directly supported his defense. Additionally, unlike in Hayes, law enforcement, rather than Appellant, created the videotape and then informed Appellant that there was no audio. This was also emphasized by the State at trial.
Therefore, the court of appeals erred in holding that Brady was not applicable in this case. The duty to disclose existed because the audio recording was known to the State but unknown to Appellant, supported his defense, and the State failed to disclose the audio portion of the videotape.
B. Evidence withheld is favorable to Appellant
To succeed on a Brady claim, Appellant must also show that the evidence withheld by the State was "favorable" to his case. Favorable evidence is that which, if disclosed and used effectively, " may make the difference between conviction and acquittal." Bagley, 473 U.S. at 676, 105 S.Ct. 3375. Favorable evidence includes exculpatory evidence as well as impeachment evidence. Exculpatory evidence is that which may justify, excuse, or clear the defendant from alleged guilt, and impeachment evidence is that which disputes, disparages, denies, or contradicts other evidence. Harm v. State, 183 S.W.3d 403, 408 (Tex.Crim.App.2006); Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App.1992).
The audio portion of the videotape is favorable to Appellant because it can be classified as both exculpatory and impeachment evidence. Pursuant to the indictment, the State had to prove that Appellant "intentionally and knowingly" possessed marijuana. See supra note 3. As revealed in the audio, Appellant's continual denials demonstrated his apparent belief that the plant material was not an illegal substance, and his immediate insistence on testing further conveyed his faith that such an analysis would exonerate him from any culpability. These beliefs, even if erroneous, could support his defense, thereby exculpating Appellant.
The audio recording may also be employed as impeachment evidence. When testifying, Asby was unable to recall if Appellant requested testing of the plant material. Appellant's insistence on testing, as heard during his transport, could have discounted Asby's testimony and supplemented the record. Additionally, the State emphatically argued that the defense did not even request testing of the plant material until after it knew that the plant material had been destroyed. The audio directly negates that claim because, in fact, Appellant asked Asby to test it at the time of his arrest.
C. The evidence is material
Under Brady, nondisclosure of favorable evidence violates due process only if it is "material" to guilt or punishment. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Agurs, 427 U.S. at 109–10, 96 S.Ct. 2392. Hence, the defendant must show that, "in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure." Hampton, 86 S.W.3d at 612; see Bagley, 473 U.S. at 682, 105 S.Ct. 3375.
"The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the Government's evidentiary suppression 'undermines confidence in the outcome of the trial.' " Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). This materiality standard is not a sufficiency of evidence test. Id. at 434–35, 115 S.Ct. 1555.
When evaluating whether the materiality standard is satisfied, the strength of the exculpatory evidence is balanced against the evidence supporting conviction. Hampton, 86 S.W.3d at 613. The suppressed evidence is considered collectively, rather than item-by-item. Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). And it is important to consider how disclosure could have affected defense preparation, with an awareness of the difficulty of post-trial reconstruction. Bagley, 473 U.S. at 683, 105 S.Ct. 3375. Thus, "[s]ometimes, what appears to be a relatively inconsequential piece of potentially exculpatory evidence may take on added significance in light of other evidence at trial." Hampton, 86 S.W.3d at 613.
Here, the nondisclosure of the videotape's audio portion is material. It undermines the confidence in the outcome of the trial. Had the audio portion been disclosed to Appellant, Appellant asserts that he would have modified his defensive strategies, and the State would have had to alter its arguments.
As Appellant points out in his brief, the disclosure of the audio portion would have affected the presentation of his defense. Instead of focusing on the destruction of evidence, Appellant would have instead chosen to pursue the defensive theory that he lacked the requisite intent. As mentioned previously, the State had to prove that Appellant "intentionally and knowingly" possessed marijuana. See supra note 3. Appellant's continual denials that the plant material was marijuana, combined with the audio recording revealing that he immediately insisted on testing, supports the contention that Appellant neither desired to possess what was indeed marijuana nor was aware that he was doing so. The audio portion communicated Appellant's apparent belief that the testing of the plant material would reveal that it was hemp (i.e., from the part of the plant of which possession is legal) and thereby exonerate him from any culpability. Therefore, the defense could logically argue that Appellant's belief, though erroneous, was reasonable and negated the culpability required. With the presentation of this defense, the jury would have been introduced to an alternate conclusion, and as it would be supported by a real-time audio recording of Appellant's own statements, there is at least a reasonable probability that the jury verdict would have been different.
The significance of the audio portion becomes even more evident when the State's case is considered. Appellant's conviction primarily rested on Asby's testimony that the plant material seized looked and smelled like marijuana, as substantiated by the results of the analysis and testing performed by the lab in Waco. Based upon that evidence, the State attacked the credibility of Appellant's assertions that the material was not marijuana, arguing that they were deceptive, insincere, and unworthy of belief. In addition, the State asserted that Appellant did not initially request testing or otherwise imply that testing was sought only after knowing that the evidence had been destroyed. With the introduction of the videotape's audio portion, the State would have altered these arguments or abandoned them because the defense could have countered them by showing, via the audio recording, that the demands for testing were actually made at the time of arrest and, thus, Appellant's assertions were accurate and more likely to be accepted by the jury as honest and sincere.
Combining the effects on both parties' trial strategies with the other evidence presented at trial, it is reasonably probable that the outcome of the trial would have been different. This conclusion is buttressed by the fact that at least one juror initially refused to support the conviction, and even in the absence of the undisclosed evidence, there is substantial evidence to support Appellant's mistaken belief. Asby testified that this was the only case of fresh marijuana that he had "made." Asby stated that this was unlike most drug trafficking cases because the plant material was fresh, rather than dried, and Appellant was heading south, instead of north. Appellant apparently made no real effort to hide or disguise the plant material, which covered the cargo area of the van and was visible to Asby when he glanced into the backseat. Appellant immediately explained to Asby that he was planning to use the material to make trinkets and leather goods. Finally, Appellant's emphatic claims and the unusual facts generated a lengthy discussion among the officers about the material and even prompted Asby to call a chemist. All of this needs to be considered against the fact of the mysterious destruction of the substance and pertinent records before trial.
The test results establishing that the material was marijuana do not negate Appellant's defense because mistake of fact focuses on Appellant's culpability, rather than the actual identity of the plant substance. Still, it is important to consider that Mott testified that hemp rope could possibly, though it would not necessarily, test positive for THC, as marijuana does. When Mott's testimony is combined with the other evidence presented at trial, there is a reasonably probability that the jurors would be left with at least some doubt and uncertainty as to Appellant's guilt.
Overall, the audio portion of the videotape is of material significance to Appellant's case.
D. Evidence would be admissible
The State does not have a duty to disclose favorable, material evidence if it would be inadmissible in court. Kimes, 872 S.W.2d at 703. Hearsay is "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex.R. Evid. 801(d). Generally, hearsay statements are not admissible unless the statement falls within a recognized exception to the hearsay rule. Texas Rule of Evidence 107, known as the rule of optional completeness, is such an exception:
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. Tex.R. Evid. 107. This evidentiary rule "is designed to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing." Walters v. State, 247 S.W.3d 204, 218 (Tex.Crim.App.2007). Thus, Rule 107 is not invoked by the mere reference to a document, statement, or act. Rather, to be admitted under that rule, "the omitted portion of the statement must be 'on the same subject' and must be 'necessary to make it fully understood.' " Sauceda v. State, 129 S.W.3d 116, 123 (Tex.Crim.App.2004).
In this case, while the audio portion of the videotape may be hearsay, it would be admissible under Rule 107. The State introduced and relied upon the visual portion of the videotape to prove its case. When the videotape was shown to the jury, Asby testified to the exchange that occurred between himself and Appellant during the traffic stop and Appellant's subsequent detention. Asby also referenced Appellant's denials that the plant material was marijuana, but he could not recall whether Appellant requested testing of the plant material. The audio portion of the videotape memorializes the conversation between Appellant and Asby. Hence, the audio is on the same subject as other statements introduced into evidence. In addition, the audio reflects that Appellant did indeed request testing, making the audio's disclosure necessary to clarify prior uncertainties in Asby's recollection and for the jury to have a full understanding of the case based on Appellant's own words delivered at the time of his arrest. Cf. Allridge v. State, 762 S.W.2d 146, 153 (Tex.Crim.App.1988) (holding that the defendant's self-serving hearsay confession was not admissible under Rule 107 when the State offered a later confession which "did not mislead the jury or leave the jury with only a partial or incomplete version of the facts"). Accordingly, the audio portion of the videotape would be admissible pursuant to Rule 107.
Because the audio portion of the videotape is favorable evidence that would be material to Appellant's case and the State failed to disclose such evidence to Appellant, the State violated Appellant's constitutional right as expressed in Brady. We reverse the judgment of the court of appeals and remand the case to the trial court for a new trial.
1. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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"Based on the numbers you have shared with me, I think the business should fetch about $5 million."
This statement was made to one of my clients by a business broker after an hour-long meeting and a brief review of a couple of years of my client's financial information.
I sat quietly in disbelief observing my client's body language change from anticipation to relief and joy. I could see him doing the math in his head-$5 million was the number he needed.
After the meeting, I sat down with my client and reviewed what had just happened. Although we had discussed the basic "seller's formula" before, it was time to walk through it one more time.
The seller's formula is an algebraic equation in which you must have two of the variables to solve for the third. In his case, the basic formula of "term + structure = price" was incomplete; the broker had given us the price, but we were missing the two other variables.
To make my point, I told my client that I would be happy to pay him twice that price-$10 million-as long as I could pay him $1 per year for 10 million years. He quickly got the point and recalled our earlier discussions about the need to know all three variables before a decision could be made as to how good the deal really was.
The term of a deal is the period over which the payments are to be made. Generally, the longer the term, the more risk the seller assumes because of future events and conditions that are typically outside his control. Since businesses are rarely sold without some future payments, the term can be a critical element of any transaction.
Generally, the longer the term, the more the price must increase. Conversely, the more cash to be paid at closing, the lower the total price. The younger the seller is, the more he or she may be willing to live with a longer term. Older sellers will generally bargain for a shorter term, even if it means less money.
The most important part of the seller's formula may well be the structure, and the most important element of structure is the determination of what is being sold. If the ownership interests of the business are being sold, it is commonly referred to as a "stock sale." Likewise, if the assets of the business are changing hands, it is commonly referred to as an "asset sale."
In the example of my client's business, if the broker was talking about an asset sale, the selling price would not include paying off all of the liabilities of the business-likely a substantial amount. On the other hand, if the broker was talking about a stock sale, it would include the purchase of all assets and assumption of all liabilities.
The lack of clarity as to what exactly is being sold often causes sellers a great deal of confusion. Brokers and potential buyers often use the terminology "purchase of the business" without being specific as to what is being purchased.
Not only is the sales price significantly different in an asset sale vs. a stock sale, but the seller's profit is usually different because of how the proceeds are treated for income-tax purposes. And even if the purchase price in an asset sale is many times greater than the price to be paid in a stock sale, the amount that ends up in the seller's pocket might be the same.
Other elements of structure that will be discussed in future articles include interest rates, discount rates, consulting fees, employment agreements, tax allocations and many others.
For the time being, however, it is important to remember that, until the seller has all of the variables of the seller's formula analyzed, the sales price itself means little or nothing.
Alerding is managing director of Alerding Co. LLC, an accounting and consulting firm specializing in entrepreneurial businesses. He can be reached at P.O. Box 90170, Indianapolis, IN 46290-0170; 569-4181, ext. 223; malerding@alerdingandco.com.