Apparently, just before opening statements, the following lenghthy exchange took place (as set forth in the opinion):
[Defense Counsel]: Yes. Judge, a few minutes ago [Prosecutor] made a Brady type disclosure to me. I don’t want to run the risk of misstating what he told me.
If you’ll tell the judge.
[Prosecutor]: I’ll do it. Judge, there was one witness that was on our subpoena list. Her name is Sarah Parrish. She drifts. She’s very difficult to find. She’s not stable. The subpoena on her actually was never served. It went to Coryell County with her last known address, and they told us—they sent it back, “Unable to serve subpoena.” She showed up today. Her remark to me was much like it was to the officers the night of this – when the defendant was arrested, that he had permission from the check holder. She, technically, was never served by subpoena. I saw her at lunch and I talked with her at lunch, and she said, “Are you going to need me right now?” I said, “no,” and she said, “Could I go get lunch and then come right back or be back by 1:30?” I said, “sure,” because I don’t really have any desire to call her to the stand. As soon as I saw [Defense Counsel] after that, I let him know what she had said, and that’s the gist of it. I mean, quite honestly, I find her completely untruthful, and I don’t see any need to call her. That’s why – in the interest of fairness and disclosure, I wanted to give him everything we had on that. Today is the first chance I’ve ever had to talk to her, at lunch.
THE COURT: She never actually got served with the subpoena?
[Prosecutor]: No. She just showed up today, because the way the officer –the only way the officer – she has no phone number, she has no permanent address that we can find her at, and either one of the deputies or investigators from Coryell County or another police officer – I’m not sure –sent her a Facebook message. That’s what her mom said was the only way to get in touch with her was to send her a Facebook message and wait. They didn’t know if they would have her here in time or not. That’s what they were told. They sent her a Facebook message, and she told me she got it, I guess, this morning, and she showed up.
THE COURT: Modern culture, nothing like it.
[Defense Counsel]: Judge, for the record, I’ve been looking for her, myself, for two months. I turned every rock I could, including using the Facebook …. We have not had any response at all. Now, this is a very crucial element of the offense, of course. We don’t have the witness. We don’t have any means to get her.
[Prosecutor]: She said – the best I can say is she said she’d be back at our office at 1:30, and we were over here before 1:30, and I said I’d come back for her if we needed her.
THE COURT: [Defense Counsel], did the defense issue a subpoena for her also?
[Defense Counsel]: No. I didn’t know where to issue it, Judge. I didn’t know where to send it.
THE COURT: So what is it you’re suggesting that I do about it?
[Defense Counsel]: Well, I want to get this crucial piece of evidence before the jury. I mean, it’s a crucial part of their case. I don’t want to break any rules of decorum or anything like that, Judge, but I want to get some guidance from the Court about how to do it.
THE COURT: Well, my suggestion is to find the witness.
[Defense Counsel]: I don’t know where to look.
THE COURT: I don’t either.
[Prosecutor]: I mean, she may be back at our office. Like I said, we left at 1:15.
[Defense Counsel]: Well, you know, I can’t get in the DA’s office without an escort, Judge.
THE COURT: Find out if she’s back in you-all’s office. If she is, serve her with the subpoena.
[Prosecutor # 2]: We don’t have a subpoena for her anymore. Right?
[Prosecutor]: It came back not returned. I don’t have another one to hand her now. It has come back unable to locate.
THE COURT: Where is the original subpoena?
[Prosecutor]: To be honest, I don’t know. I handed it to my investigator. It was sent to Coryell County.
[Prosecutor # 2]: It was sent to Coryell County, and they sent the return back.
THE COURT: Well, if she’s over there and she comes to your office, have her brought over here. Escort her with an officer, if you have to, and I’ll talk with her.
[Prosecutor # 2]: Okay.
[Prosecutor]: Do you want me to go look right now before we get going?
THE COURT: You can call. I want to get the jury in here.
On appeal, Futch contended “that the State’s suppression of evidence favorable to his defense violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution or Article 1, Section 19 of the Texas Constitution” and that the State withheld oral testimony in violation of [Brady] by dismissing a witness who had voluntarily come to court to testify for the State. However, the court of appeals found that Futch did not preserve the issue for review. Specifically, the court held that Futch’s attorney’s generalized reference to a “Brady type disclosure” and failure to object or otherwise move for a continuance waived the complaint. Now, as a civil litigation blog, we are more interested in the social media component of this case than the criminal procedure angles. However, we all must serve subpoenas, and we all face encountered difficult to locate witnesses whose online presence may be the only evidence of their whereabouts. Accordingly, FYI.