George Braddock Ogle, II was convicted by a jury of kidnapping and sentenced to fifty years imprisonment. The Texas Court of Criminal Appeals initially reversed but subsequently affirmed the judgment of conviction, and pursuant to 28 U.S.C. § 2254, appellant applied to the district court for federal habeas corpus relief. In his habeas corpus petition appellant claimed he was deprived of his Sixth and Fourteenth Amendment right to counsel and his due process right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).1 The federal magistrate determined Ogle had failed to exhaust state remedies under 28 U.S.C. § 2254 and the district court denied relief. On this appeal appellant argues that he satisfied the exhaustion requirement. We find this contention correct and therefore reverse and remand.

Following his conviction in state court, Ogle perfected an appeal to the Texas Court of Criminal Appeals. In his brief he alleged numerous errors by the trial court. Included was the court's denial of appellant's motion to require an FBI agent who was a prosecution witness to turn over his investigation report to the defense for purposes of cross-examination. Ogle contended that the trial court's ruling constituted a violation of the state "Gaskin Rule."2 Appellant advanced neither of the grounds later presented in his federal habeas corpus application.

On November 5, 1975 the Court of Criminal Appeals reversed the judgment of conviction, finding appellant was entitled under Gaskin to examine the FBI report. Ogle v. State, 548 S.W.2d 360 (Tex.Cr.App.1975). On November 20, the State moved for rehearing and the court granted the motion, ordering a copy of the FBI report be furnished Ogle for preparation of his brief. This was the first opportunity for appellant's counsel to review the report.

Upon receiving the report, Ogle submitted on March 25, 1976 a supplemental reply brief to the state's motion for a rehearing. Therein he argued for the first time that the state suppressed certain exculpatory evidence contained in the FBI report in violation of Brady. In response, the State filed a 25 page supplemental motion for rehearing, arguing in some detail that it had not transgressed appellant's Brady rights, and if it had, the error was harmless.

On June 9, 1976 a unanimous Court of Criminal Appeals affirmed the judgment of conviction, finding that the trial court's failure to afford appellant a copy of the FBI report was harmless error. 548 S.W.2d at 363.3 The court also "overruled" all other grounds raised by appellant. 548 S.W.2d at 368. The tribunal's opinion was authored by Judge Douglas and concurred in by Judge Roberts. Neither of the two judges participated in the first opinion reversing Ogle's conviction or listened to appellant counsel's oral arguments on original submission. The appellate court's allowing their participation became the basis of appellant's second federal habeas claim. Following the affirmance of his conviction, Ogle filed a motion for leave to file a motion for rehearing and a motion for rehearing. In the motions he alleged that the participation by Judges Douglas and Roberts in his appeal's disposition deprived him of the right to assistance of counsel. In addition, he again contended the prosecution's failure to produce information from the FBI report was a violation of his Brady rights. On September 13, 1976 Ogle submitted a supplemental brief in support of his motion for rehearing. Therein he reiterated his right to counsel claim.

The Court of Criminal Appeals denied the motion without opinion on April 6, 1977. The ruling came almost ten months after the conviction was affirmed and approximately nine months after Ogle filed the motion for rehearing.

In finding a failure to exhaust state remedies, the federal magistrate reasoned that Ogle had neglected to comply with state appellate procedural requirements and consequently the two claims were not "fairly presented" to the appellate court. Article 40.09 Tex.Code Crim.Proc.Ann. (Vernon 1979),4 provides that all appeals are to be commenced by the filing of briefs with the trial court so that it may be given an opportunity to review any possible errors and correct them through the grant of a new trial. The magistrate resolved that appellant contravened the underlying policies of this rule by initially presenting the Brady error to the Texas Court of Criminal Appeals in his March 25, 1976 reply to the state's motion for rehearing. Ogle's omission of this argument from his initial appellate brief deprived the trial judge of the opportunity to address the claim and further develop the factual record and legal principles for the benefit of the appellate court.

Our inquiry into the correctness of these conclusions must commence with 28 U.S.C. § 2254(b) and (c)5 which specify that a writ of habeas corpus shall not be granted unless the petitioner has "exhausted the remedies available in the courts of the State." The statute is a codification of a federal jurisdictional policy designed "to effect a proper balance between the roles of state and federal judicial institutions in protecting federal rights." Lerma v. Estelle, 585 F.2d 1297, 1299 (Rubin, J., dissenting). The policy requires as an accommodation of our federal system that state courts be given an initial opportunity "to pass upon and correct errors of federal law in the state prisoner's conviction." Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 848, 9 L. Ed. 2d 837 (1963), cited by Wilwording v. Swenson, 404 U.S. 249, 250, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971). See Preiser v. Rodriguez,411 U.S. 475, 490, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). That opportunity is accorded and the exhaustion requirement is satisfied when the federal claims have been fairly presented to the state courts for disposition. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). See Francisco v. Gathright, 419 U.S. 59, 63, 95 S. Ct. 257, 42 L. Ed. 2d 226 (1974); Tooten v. Shevin, 493 F.2d 173, 176 (5th Cir. 1974), Cert. den., 421 U.S. 966, 95 S. Ct. 1957, 44 L. Ed. 2d 454 (1975).

This court is convinced that the Texas Court of Criminal Appeals had a fair opportunity to decide the issues raised in appellant's habeas corpus application. Accordingly, we believe Ogle has sufficiently exhausted state remedies and is eligible to seek federal redress for his grievances.

The state concedes that the procedural policies of Art. 40.09, are inapplicable to the right to counsel issue since it involved an alleged error occurring during the appellate process.6 Ogle asserted the error on the first possible occasion, in his motion for rehearing after his conviction was affirmed. At the same time, the Court of Criminal Appeals had complete discretion under the Texas statutory scheme to decide the Brady issue, though it was not presented to the trial court in appellant's initial appellate brief. Art. 40.09 § 13, Tex.Code Crim.Proc.Ann. (Vernon 1979)7 explicitly permits the Court of Criminal Appeals to review errors not considered by the trial court whenever it determines the review will be in the "interests of justice." Nothing in the state's statutory procedure prohibits an appellant from raising these unassigned errors in a reply to the state's motion for rehearing or in his own motion for rehearing.

Indeed, the Texas Court of Criminal Appeals on numerous occasions has exercised its discretion and reviewed claims of constitutional dimension raised initially during the appellate process, E. g., Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975) (court took judicial notice on appeal of erroneous jury charge constituting due process violation); Pena v. State, 442 S.W.2d 691 (Tex.Cr.App.1969) (double jeopardy claim considered though not presented to trial court); and presented by way of a motion for rehearing, E. g., Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973) (ineffective assistance); Bass v. State, 427 S.W.2d 624 (Tex.Cr.App.1968) (comment on defendant's silence).

Ogle fairly presented the Brady ground to the appellate court by asserting it in his March 25, 1976 supplemental reply brief and the subsequent motion for rehearing. These briefs and the state's 25 page brief, filed in response on April 23, 1976, properly developed the issue for disposition. The lengthy nine month period which passed between Ogle's filing of the motion for rehearing and the Court of Appeals' denial of it indicates that the court considered and decided the Brady claim adversely to appellant. However, even if the court did not decide the issue, it was afforded a full and fair opportunity to do so in compliance with 28 U.S.C. § 2254.8

The State argues that a finding of exhaustion by this court would exhibit a lack of proper respect for Texas' statutory procedures. We disagree. No principle of comity is offended by our conclusion that Ogle has sufficiently presented the claim to the Texas courts. The state's interest in having its procedures followed was respected. Ogle did not attempt to circumvent the appellate rules. He first learned of the possible Brady error upon receipt of the FBI report After the court had reversed his conviction. Thereafter, he asserted the claim at the first possible stage during his appeal, in his supplemental reply brief to the state's motion for rehearing. Furthermore, the claim was adequately developed in the briefs. Finally, under the Texas statutory scheme, the Court of Criminal Appeals had full discretion to adjudicate the unassigned error. Viewing the issue conversely, to deny Ogle access to federal court would serve no visible state interest.

Having decided that there was an exhaustion of remedies, we reverse and remand for proceedings not inconsistent with this opinion. We, of course, express no view on the merits of appellant's claims.

REVERSED and REMANDED.